[2018] KEELC 3368 (KLR)
The court found that the plaintiff had proved, on a balance of probabilities, that she is the registered owner of the disputed land parcel Makueni/Kalongo/2099. The evidence, including the title deed and supporting documents, established her ownership. The defendant, having failed to file a defence or appear, did...
Source-derived case information.
- Citation
- [2018] KEELC 3368 (KLR)
- Parties
- Plaintiff: Elizabeth Ndulu Mathuva; Defendant: Joseph Mbiu Muthiani
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 152 of 2016
- Procedural Posture
- Land and Environment Case / Judgment
- Outcome
- Judgment for the plaintiff. Orders of eviction and costs granted.
- Legal Topics
- Trespass to Land, Eviction Orders, Ownership of Land, Title Deeds, Land Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Ndulu Mathuva
Plaintiff
Joseph Mbiu Muthiani
Defendant
Procedural Posture
Land and Environment Case / Judgment
Legal Issues
- 1 Whether the plaintiff is the registered owner of land parcel Makueni/Kalongo/2099.
- 2 Whether the defendant trespassed onto the plaintiff's land and unlawfully occupied it.
- 3 Whether the plaintiff is entitled to an order of eviction against the defendant.
Ratio Decidendi
The court found that the plaintiff had proved, on a balance of probabilities, that she is the registered owner of the disputed land parcel Makueni/Kalongo/2099. The evidence, including the title deed and supporting documents, established her ownership. The defendant, having failed to file a defence or appear, did not challenge the plaintiff's case. The court accepted the plaintiff's evidence that the defendant had trespassed, taken over the land, and cut down trees. Consequently, the court held that the plaintiff was entitled to an order of eviction and costs, with the eviction to be conducted in accordance with section 152E of the Land Act as amended.
Court Disposition
Judgment for the plaintiff. Orders of eviction and costs granted.
Orders
- The defendant shall be evicted from parcel number Makueni/Kalongo/2099.
- The plaintiff is awarded the costs of the suit.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT IOF KENYA AT MAKUENI
ELC NO. 152 OF 2017
FORMERLY MACHAKOS ELC NO. 221 OF 2016
ELIZABETH NDULU MATHUVA.........................PLAINTIFF
VERSUS
JOSEPH MBIU MUTHIANI...............................DEFENDANT
JUDGMENT
1. The plaintiff is a farmer and a resident of Thomeandu Village, Kikoko location. She is also the registered owner of land parcel number Makueni Kalongo /2099.
2. She accuses the defendant of having trespassed into the said land parcel number Makueni/Kalongo/2099.
3. By her plaint dated 8th December, 2016 and filed in court on even date, the plaintiff prays for judgment for;
1. An order of eviction of defendant from parcel number Makueni/Kalongo/2099
2. Cost of the suit
4. The matter proceeded as undefended suit after the defendant who entered on the 22nd December, 2016 through Nathan Mbullo and Associates Advocates failed to file defence within the prescribed period.
5. In her evidence in court, the plaintiff accused the defendant who is the nephew of her late husband of having taken over her farm. She went on to say that the defendant farms on the land in question. She said that the defendant has cut down trees on her land.
6. The plaintiff produced a copy of title deed, demand letter issue to the defendant as Pex No. 1 and 4 respectively. She also produced a copy of grant of letters of administration, a copy of confirmation of the grant and a copy of certificate of death as PexNos. 2, 3 and 5.
7. Although the plaintiff’s counsel had indicated that he was going to file submissions, he did not do so.
8. Nevertheless, a perusal of the evidence and the exhibits produced by the plaintiff clearly shows that she is the registered owner of the said land parcel number Makueni/Kalongo/2099. There is also evidence to show that the defendant has indeed invaded her farm and proceeded to cut down her trees.
9. Arising from the above, my finding is that the plaintiff has on a balance of probabilities satisfied this court that she has a cause of action against the defendant. In the circumstances, I hereby proceed to enter judgment for her and against the defendant in term of prayers 1 and 2 of her plaint. For good measure, I direct that prayer 1 to be carried out in accordance with section 152E of the Land Act no. 6 of 2012 as amended by the Land Law Amendments of 2016. It is so ordered.
Signed, Dated and Delivered at Makuenithis 17th day of April, 2018
MBOGO C.G
JUDGE
In the presence of;
1. Mr. Tamata for plaintiff
2. Mr. Kwemboi Court Assistant
No appearance for the defendant
MBOGO C.G, JUDGE
17/4/2018