[2018] KEELC 3570 (KLR)
The court found that the plaintiff had produced uncontroverted evidence of ownership of the suit plots, including certificates of ownership and payment receipts. The defendant, having failed to file a defence or participate in the proceedings, did not challenge the plaintiff's evidence. The court held that the...
Source-derived case information.
- Citation
- [2018] KEELC 3570 (KLR)
- Parties
- Plaintiff: Esther Wanjiku Waweru; Defendant: David Onderi alias 'Major' alias Dominic Onderi Omambia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 583 of 2012
- Procedural Posture
- Land and Property Suit / Judgment After Ex Parte Formal Proof
- Outcome
- Judgment for the plaintiff; declaration of ownership and permanent injunction granted; costs awarded to plaintiff.
- Legal Topics
- Ownership Disputes, Trespass, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Wanjiku Waweru
Plaintiff
David Onderi alias 'Major' alias Dominic Onderi Omambia
Defendant
Procedural Posture
Land and Property Suit / Judgment After Ex Parte Formal Proof
Legal Issues
- 1 Whether the plaintiff is the rightful owner of plot Nos. P 8533 and P 8534 comprised in LR No.179/41 Ruai, Nairobi.
- 2 Whether the defendant trespassed onto the plaintiff's parcels of land.
- 3 Whether the plaintiff is entitled to a permanent injunction restraining the defendant from interfering with the suit properties.
Ratio Decidendi
The court found that the plaintiff had produced uncontroverted evidence of ownership of the suit plots, including certificates of ownership and payment receipts. The defendant, having failed to file a defence or participate in the proceedings, did not challenge the plaintiff's evidence. The court held that the plaintiff had proved her case on a balance of probabilities and was entitled to a declaration of ownership and a permanent injunction restraining the defendant from trespassing or erecting structures on the suit properties.
Court Disposition
Judgment for the plaintiff; declaration of ownership and permanent injunction granted; costs awarded to plaintiff.
Orders
- The plaintiff is declared the rightful owner of plot Nos. P 8533 and P 8534 comprised in LR No.179/41 Ruai, Nairobi.
- A permanent injunction is issued restraining the defendant from trespassing onto, entering or erecting or building structures on land parcel Nos. P 8533 and P 8534 comprised in LR 179/41, Ruai, Nairobi.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
MILIMANI LAW COURTS
ELC NO.583 OF 2012
ESTHER WANJIKU WAWERU……………………..PLAINTIFF
=VERSUS=
DAVID ONDERI ALIAS “ MAJOR’
ALIAS DOMINIC ONDERI OMAMBIA................DEFENDANT
JUDGEMENT
1. The Plaintiff filed this suit against the Defendant claiming the following reliefs:-
a.That the Defendant be permanentlyrestrained by an order of injunction from trespassing onto, entering or erecting or building any structures on the plaintiff’s two 920parcels of land Nos.P.8533 and P.8534 situated on L.R 179/41,Ruai,Nairobi.
b.A declaration that the above two (2) plots Nos.P.8533 and P.8534 rightly belong to and are owned by the Plaintiff.
c.Costs of this suit.
2. The defendant was duly served with summons to enter appearance and file defence but he did not. The Plaint was later amended and fresh summons were served. The defendant did not enter appearance and file defence in time. He nevertheless filed defence out of time but never served the same upon the plaintiff’s advocates. An application was made seeking to strike out the defence. The defendant’s advocates though served did not file any replying affidavit and never appeared during hearing of the application.
3. The defence was struck out. The defendant was later served for formal proof but did not appear in court. The hearing therefore proceeded ex-parte .
4. The plaintiff testified that in 1997 she bought two plots from Embakasi Ranching Company Limited. She was duly given certificate of ownership for the two plots. She was even given beacon certificates. In May 2012 she was informed that someone had trespassed into her plots and erected a structure on the same, she made enquiries and found out that it was the defendant who had trespassed into the properties. She reported the intrusion to Ruai Police station. The defendant was summoned but he never appeared. The plaintiff reported the trespass to CID headquarters now called the Directorate of Criminal Investigations. The Plaintiff did not attend as summoned.
5. I have gone through the documents produced by the plaintiff. There are two certificates of plot ownership in respect of plot Nos P 8533 and p 8534. The two plots were allocated to the plaintiff on 9. 10. 1997. The plaintiff produced photographs of an incomplete house. There is also evidence that on 18/6/2012, the plaintiff paid Kshs.40,000/=to Embakasi Ranching Company Limited. On 19/6/2012 she was taken to the physical location of the plots were she was shown the plots.
6. The Plaintiff’s evidence is not controverted. I find that the Plaintiff has proved her case against the Defendant on a balance of probabilities. I therefore enter judgement for the Plaintiff against the Defendant as follows:-
a)The Plaintiff is the rightful owner of plot Nos. P 8533 and P 8534 comprised in LR No.179/41 Ruai in Nairobi.
b)A permanent injunction is hereby issued restraining the defendant from trespassing onto, entering or erecting or building structures on land parcel Nos. P 8533 and P 8534 comprised on LR 179/4, Ruai, Nairobi.
c)The defendant shall pay costs of this suit.
Dated, Signed and delivered at Nairobion this 19thday of April 2018.
E.O.OBAGA
JUDGE
In the absence of:-
…………………………..
………………………….
Court Assistant:
E.O.OBAGA
JUDGE