[2015] KEHC 6955 (KLR)
The court found that the Plaintiff, Egerton University, had established legal ownership of the suit property through a valid government allotment letter, payment of fees, and subsequent occupation and fencing of the land. The Defendants failed to adduce any evidence to support their claim of adverse possession or...
Source-derived case information.
- Citation
- [2015] KEHC 6955 (KLR)
- Parties
- Plaintiff: Egerton University; Defendant: Mohamed Salim Hussein; Defendant: Glads Wanjiku; Defendant: Charles Mali Kaindi; Defendant: Joseph Kiplagat; Defendant: Martin Musymi Kioko; Defendant: Julius Yeri; Defendant: John Otieno Ononyo; Defendant: Zakaria Kariuki; Defendant: David Njoroge Kamau; Defendant: Charles Kahindi; Defendant: Eunice Kawira; Defendant: Patrick Safari; Defendant: Eliyah Mbugua Kamau; Defendant: Halima Alio Bari; Defendant: James Munyau; Defendant: Jidraf Thiongo; Defendant: Joseph Kiplangat; Defendant: Susan Kubania; Defendant: Joseph Kasere; Defendant: Stephen Wachira; Defendant: Paul Mwaniki; Defendant: Veronicah Wambura; Defendant: Jackson Muthiani; Defendant: James Ngure; Defendant: Jackson Gitonga Kamau; Defendant: Patrick Isaihi; Defendant: Mtana Mwandizwe; Defendant: Monicah Mweni Kenga; Defendant: Joyce Waringa Gitau; Defendant: Leonard Kombe Nzai; Defendant: Alison Migwi; Defendant: Edward Kiplagat Too; Defendant: Jerald Mokaa; Defendant: Ruth Mwihaki; Defendant: Stephen Wangunyu Kuhura; Defendant: Jackline Kambua Musyinal; Defendant: Sarah Njambi Muhuri; Defendant: Milcah Wanjiku Maina; Defendant: Mathew Mbaruka Mutisya; Defendant: Teresiah Nditi Kitili; Defendant: Nicholus Ndambuki; Defendant: Katana Muthanga; Defendant: Francis Njuguna; Defendant: Samson Karau; Defendant: Agnes Wanjiru Kamau; Defendant: Scholastica Mwenda Msau; Defendant: Salim Ahmed Shali; Defendant: Mariam Mzee Omar; Defendant: Karabu Kadenge; Defendant: Benard Kiyalo Mwinde; Defendant: Kenedey Kaunda Musyinal; Defendant: Mohamed Bwena; Defendant: Abdallah A. Awadh Abubakar; Defendant: Badiria Mohamed Abdalla; Defendant: Lucy Wangui Wanjohi; Defendant: Richard Macharia Ndichu; Defendant: Kigee Karau; Defendant: Ann Musangi Maluki; Defendant: Mohamed Famau; Defendant: Antony Kihara Mbugua; Defendant: Consolata Kagure Gitau
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 97 of 2014
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaintiff's suit allowed. Defendants declared trespassers. Orders of eviction and permanent injunction granted. Costs to Plaintiff.
- Judges
- OA Angote
- Legal Topics
- Eviction, Adverse Possession, Trespass, Allotment Letter, Permanent Injunction
- Source Language
- en
Source-derived case record
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Parties
Egerton University
Plaintiff
Mohamed Salim Hussein
Defendant
Glads Wanjiku
Defendant
Charles Mali Kaindi
Defendant
Joseph Kiplagat
Defendant
Martin Musymi Kioko
Defendant
Julius Yeri
Defendant
John Otieno Ononyo
Defendant
Zakaria Kariuki
Defendant
David Njoroge Kamau
Defendant
Charles Kahindi
Defendant
Eunice Kawira
Defendant
Patrick Safari
Defendant
Eliyah Mbugua Kamau
Defendant
Halima Alio Bari
Defendant
James Munyau
Defendant
Jidraf Thiongo
Defendant
Joseph Kiplangat
Defendant
Susan Kubania
Defendant
Joseph Kasere
Defendant
Stephen Wachira
Defendant
Paul Mwaniki
Defendant
Veronicah Wambura
Defendant
Jackson Muthiani
Defendant
James Ngure
Defendant
Jackson Gitonga Kamau
Defendant
Patrick Isaihi
Defendant
Mtana Mwandizwe
Defendant
Monicah Mweni Kenga
Defendant
Joyce Waringa Gitau
Defendant
Leonard Kombe Nzai
Defendant
Alison Migwi
Defendant
Edward Kiplagat Too
Defendant
Jerald Mokaa
Defendant
Ruth Mwihaki
Defendant
Stephen Wangunyu Kuhura
Defendant
Jackline Kambua Musyinal
Defendant
Sarah Njambi Muhuri
Defendant
Milcah Wanjiku Maina
Defendant
Mathew Mbaruka Mutisya
Defendant
Teresiah Nditi Kitili
Defendant
Nicholus Ndambuki
Defendant
Katana Muthanga
Defendant
Francis Njuguna
Defendant
Samson Karau
Defendant
Agnes Wanjiru Kamau
Defendant
Scholastica Mwenda Msau
Defendant
Salim Ahmed Shali
Defendant
Mariam Mzee Omar
Defendant
Karabu Kadenge
Defendant
Benard Kiyalo Mwinde
Defendant
Kenedey Kaunda Musyinal
Defendant
Mohamed Bwena
Defendant
Abdallah A. Awadh Abubakar
Defendant
Badiria Mohamed Abdalla
Defendant
Lucy Wangui Wanjohi
Defendant
Richard Macharia Ndichu
Defendant
Kigee Karau
Defendant
Ann Musangi Maluki
Defendant
Mohamed Famau
Defendant
Antony Kihara Mbugua
Defendant
Consolata Kagure Gitau
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the Plaintiff is the legal owner of the suit property known as 209163/D Lamu West District.
- 2 Whether the Defendants are trespassers on the suit property and liable to eviction.
- 3 Whether the Defendants have any rights to the suit property by virtue of adverse possession or as residents under trust land.
Ratio Decidendi
The court found that the Plaintiff, Egerton University, had established legal ownership of the suit property through a valid government allotment letter, payment of fees, and subsequent occupation and fencing of the land. The Defendants failed to adduce any evidence to support their claim of adverse possession or any proprietary right, and their previous suit was struck out for lack of such interest. The court held that the Defendants are trespassers and have no legal or equitable claim to the land. The Plaintiff is entitled to vacant possession, eviction orders, and a permanent injunction restraining the Defendants from interfering with the Plaintiff's enjoyment of the property.
Court Disposition
Plaintiff's suit allowed. Defendants declared trespassers. Orders of eviction and permanent injunction granted. Costs to Plaintiff.
Orders
- An order of eviction is issued against the Defendants to give the Plaintiff vacant possession of land known as 209163/D Lamu West District measuring approximately 170 hectares.
- An order of permanent injunction is issued restraining the Defendants, their agents, servants or employees from interfering with the Plaintiff's quiet enjoyment and dealings in land known as 209163/D Lamu West District measuring approximately 170 hectares.
Full Case Text
Judgment text and source record
105 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO.97 OF 2014
EGERTON UNIVERSITY..............................................................PLAINTIFF
=VERSUS=
1. MOHAMED SALIM HUSSEIN
2. GLADS WANJIKU
3. CHARLES MALI KAINDI
4. JOSEPH KIPLAGAT
5. MARTIN MUSYMI KIOKO
6. JULIUS YERI
7. JOHN OTIENO ONONYO
8. ZAKARIA KARIUKI
9. DAVID NJOROGE KAMAU
10. CHARLES KAHINDI
11. EUNICE KAWIRA
12. PATRICK SAFARI
13. ELIYAH MBUGUA KAMAU
14. HALIMA ALIO BARI
15. JAMES MUNYAU
16. JIDRAF THIONGO
17. JOSEPH KIPLANGAT
18. SUSAN KUBANIA
19. JOSEPH KASERE
20. STEPHEN WACHIRA
21. PAUL MWANIKI
22. VERONICAH WAMBURA
23. JACKSON MUTHIANI
24. JAMES NGURE
25. JACKSON GITONGA KAMAU
26. PATRICK ISAIHI
27. MTANA MWANDIZWE
28. MONICAH MWENI KENGA
29. JOYCE WARINGA GITAU
30. LEONARD KOMBE NZAI
31. ALISON MIGWI
32. EDWARD KIPLAGAT TOO
33. JERALD MOKAA
34. RUTH MWIHAKI
35. STEPHEN WANGUNYU KUHURA
36. JACKLINE KAMBUA MUSYINAL
37. SARAH NJAMBI MUHURI
38. MILCAH WANJIKU MAINA
39. MATHEW MBARUKA MUTISYA
40. TERESIAH NDITI KITILI
41. NICHOLUS NDAMBUKI
42. KATANA MUTHANGA
43. FRANCIS NJUGUNA
44. SAMSON KARAU
45. AGNES WANJIRU KAMAU
46. SCHOLASTICA MWENDA MSAU
47. SALIM AHMED SHALI
48. MARIAMU MZEE OMAR
49. KARABU KADENGE
50. BENARD KIYALO MWINDE
51. KENEDY KAUNDA MUSYINAL
52. EDWARD KIPLAGAT TOO
53. MOHAMED BWENA
54. ABDALLAH A. AWADH ABUBAKAR
55. BADIRIA MOHAMED ABDALLA
56. LUCY WANGUI WANJOHI
57. RICHARD MACHARIA NDICHU
58. KIGEE KARAU
59. ANN MUSANGI MALUKI
60. MOHAMED FAMAU
61. ANTONY KIHARA MBUGUA
62. CONSOLATA KAGURE GITAU...........................DEFENDANTS
J U D G M E N T
Introduction:
1. In the Plaint dated 21st May, 2014, the Plaintiff is seeking for an eviction order against the Defendants.
2. The Plaintiff has averred in the Plaint that it is the legal owner of all that parcel of land known as 209163/D Lamu West District measuring approximately 170 hacters pursuant to a letter of allotment dated 30th November 2001.
3. It is the Plaintiff's case that in blatant disregard to the Plaintiff's ownership and interest in the suit land, the Defendants have moved in and proceeded to put up structures in the suit land without the Plaintiff's consent; that the Defendants suit in ELC Civil Suit No. 67 of 2013 was struck out and that the Defendants have refused to move out of the suit land despite the striking out of their suit.
4. In their Defence dated 9th December 2014, the Defendants averred that although their suit in ELC Civil Suit Number 67 of 2013 was struck out, that does not restrain them from pursuing their rights of ownership by virtue of the doctrine of adverse possession; that the suit property isTrust land held by the Settlement Fund Trustees and that they are entitled to it as residents of the area.
The Plaintiff's case:
5. The Plaintiff's Deputy Vice Chancellor, Administration and Finance, PW1, informed the court that the Plaintiff applied to the government for land for research purposes.
6. It was his evidence that the Plaintiff was offered 500 hectares of unalienated land in 1989 for research and training in Lamu District and the Plaintiff moved to secure the title to the suit land.
7. According to PW1, the suit property was surveyed in the year 2007. PW1 informed the court that the Plaintiff is still in the process of acquiring the title deed.
8. It was the evidence of PW1 that on 30th November 2001, the government, vide an allotment letter of the same date allocated the Plaintiff 170 hectares whereafter the Plaintiff paid the requisite fees of Kshs.3,530 in satisfaction of the conditions set out in the allotment..
9. PW1 informed the court that although the Plaintiff was allocated 500 hectares in 1989, it ceded 330 hectares to the squatters, including the Defendants, for settlement.
10. Upon receipt of the letter of allotment, it was the evidence of PW1 that the University fenced off its 170 hectares and that the Plaintiff has always been in occupation and possession of the same.
11. PW1 informed the court that in the numerous meetings that the Plaintiff held with the Defendants, including the meeting of 30th May 2012, the Defendants did not contest or dispute the Plaintiff's right and interest in the suit property and in fact agreed to vacate the land.
12. However, it was the evidence of PW1 that the Defendants proceeded to sue the Plaintiff herein in Malindi ELC Civil Suit Number 67 of 2007 opposing the Plaintiff's intention to evict them. PW1 informed the court that the Defendants' suit was struck out with costs.
13. It was the evidence of PW1 that the Plaintiff is the legal owner of the suit land and that the Defendants are mere trespassers with no known interest or rights in the land.
14. PW1 produced the documents in support of the Plaintiff's claim as PEXB 1-4.
15. In cross-examination, PW1 informed the court that at the time the Plaintiff was allocated the suit property, there were no squatters on the land. However, the Defendants later on put up temporary structures on the land.
The Defendants' case:
16. The Defendants did not testify in this matter. Indeed, the Defence that was filed on 9th December 2014 was never served on the Plaintiff or its advocate.
17. The Plaintiff's suit therefore proceeded as undefended.
18. The Plaintiff's advocate filed submissions and authorities which I have considered.
Analysis and findings:
19. PW1 produced in evidence the letter dated 12th September 2001 by the Plaintiff and addressed to the Director, Land Adjudication and Settlement in which the Plaintif was seeking to be allocated 500 hectares of land in Lamu as per the recommendations of the District Development Committee, Lamu.
20. In his letter dated 2nd November 2001, the Director of Land Adjudication and Settlement acceded to the said Application. A letter of allotment reference number 209163/D dated 30th November 2001 was then issued to the Plaintiff for unsurveyed land measuring approximately 170 hectares.
21. One of the conditions in the letter of allotment required the Plaintiff to pay to the Government Kshs.3,530. The Plaintiff paid the said amount on 4th December 2001 vide a banker's cheque number 00506998.
22. The evidence before this court shows that the suit property was surveyed on 22nd September 2007 vide survey plan number 470/143.
23. The Defendants have not controverted the Plaintiff's evidence. Indeed, the Defendants filed a suit in this court being Malindi ELC Civil Case No. 67 of 2013 claiming that they are the proprietors of the suit property. This court struck out the Defendants' suit on 19th December 2013 in the following terms;
“The Plaintiffs have not shown or averred in the Plaint their proprietary interests or rights over the suit property which they have admitted to be Government land”.
24. In view of my Ruling and Judgment in Malindi ELC Civil suit no 67 of 2013 and the evidence before me, I find and hold that the Plaintiff is the owner of the suit property. The Defendants are trespassers on the said property and should give vacant possession forthwith.
25. For these reasons, I allow the Plaintiff's Plaint dated 21st, May 2014 in the following terms.
(a) An order of eviction be and is hereby issued against the Defendants to give to the Plaintiff vacant possession of land known as 209163/D Lamu West District measuring approximately 170hectares.
(b) An order of permanent injunction be and is hereby issued restraining the Defendants, their agents, servants or employees from interfering with the Plaintiff's quiet enjoyment and dealings in land known as 209163/D Lamu West District measuring approximately 170hectares.
(c) The Defendants to pay to the Plaintiff the costs of the suit.
Dated and delivered in Malindi this 5th day of June,2015.
O. A. Angote
Judge