[2011] KEHC 256 (KLR)
The court found that the plaintiff had established, on a balance of probabilities, that she is the registered proprietor of the suit land, as evidenced by the land certificate and supporting court decree. The defendant's continued occupation was not supported by any legal right or evidence. The court held that the...
Source-derived case information.
- Citation
- [2011] KEHC 256 (KLR)
- Parties
- Plaintiff: Evalinah Wagikuyu Munyoro; Defendant: Miriam Wacuka Mwangi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 81 of 2009
- Procedural Posture
- Civil Case / Judgment
- Outcome
- judgment for the plaintiff
- Legal Topics
- Eviction, Registered Land, Ownership Dispute, Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evalinah Wagikuyu Munyoro
Plaintiff
Miriam Wacuka Mwangi
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff has established ownership of land parcel No. Loc.18/Gachocho/1189.
- 2 Whether the defendant is unlawfully occupying the suit land.
Ratio Decidendi
The court found that the plaintiff had established, on a balance of probabilities, that she is the registered proprietor of the suit land, as evidenced by the land certificate and supporting court decree. The defendant's continued occupation was not supported by any legal right or evidence. The court held that the plaintiff, as registered owner, is entitled to exclusive possession and the remedies sought, including eviction and a permanent injunction. The absence of a defence or contrary evidence from the defendant further strengthened the plaintiff's case. Accordingly, judgment was entered for the plaintiff as prayed in the plaint.
Court Disposition
judgment for the plaintiff
Orders
- The defendant to vacate parcel No. Loc.18/Gachocho/1189 within 30 days from the date of judgment.
- In default, the plaintiff is authorized to forcefully evict the defendant at the defendant's cost.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL CASE NO. 81 OF 2009
EVALINAH WAGIKUYU MUNYORO……….………PLAINTIFF
Versus
MIRIAM WACUKA MWANGI …………….………..DEFENDANT
JUDGMENT
Evalinah Wagikuyu Munyoro, the plaintiff herein sued Miriam Wacuka Mwangi, the Defendant vide the plaint dated 18th May 2009. In aforesaid plaint the plaintiff asked for judgment in the following terms:
a.An order of eviction against the Defendant her family members, heirs, servants, employees or agents from land Parcel No. Loc.18/Gachocho/1189 with all crops and structures thereon.
b.An order of permanent injunction against the Defendant, her family members, heirs, servants, employees or agents barring entry into land Parcel No. Loc.18/Gachocho/1189.
c.The costs of the suit.
The plaint plus the summons were served upon the Defendant who in turn filed an appearance but failed to file a defence. The case proceeded for hearing as a formal proof.
When the suit came up for hearing, the plaintiff testified alone without summoning independent witnesses to support her case. Evalinah Wagikuyu Munyoro (P.W1) told this court that Miriam Wacuka Mwangi who is her step-daughter has unlawfully refused to vacate parcel no. Loc.18/Gachocho/1189. P.W.1 produced in evidence as an exhibit Land Certificate of the aforesaid parcel to show that she was the registered proprietor. That title was issued to the plaintiff on 6th December 1978. P.W.1 said the land was transferred to her by husband. The defendant is said to have been placed into occupation of the suit land by her late husband John Mwangi Munyoro in 1990. The plaintiff told this court that John Mwangi Munyoro had sued her vide Nairobi H.C.C.C. no. 541 of 1989. P..W.1 produced a copy of decree which shows that the suit land was given to the plaintiff. The plaintiff further alleged that when the Defendant’s husband passed on, the Defendant attempted to bury his remains on the suit premises but she managed to obtain an order on injunction to restrain the defendant from doing so vide Kigumo S.R.M.C.C.C. no. 142 of 2008. She produced as an exhibit in evidence a copy of the court order.
I have carefully considered both the oral and the documentary evidence tendered by the plaintiff. The main issues which have arisen in this case is whether or not the plaintiff has established ownership of the suit premises. The other question is whether there is cogent evidence to show that the defendant is unlawfully in occupation of the suit land. After a critical consideration of the evidence, it is apparent that the plaintiff has on a balance of probabilities shown that she is the registered proprietor of the sued land. She must therefore enjoy the rights conferred to registered proprietors under the Registered Land Act. The defendant’s claim over the suit land is unknown to this court. Her presence on the suit land is not supported by evidence nor law.
In the end I am convinced that plaintiff has proved her case to the required standards in civil cases. I enter judgment in her favour as prayed in the plaint. The Defendant should vacateparcel no. Loc.18/Gachocho/1189 within 30 days from the date of this judgment. In default the plaintiff to forcefully evict the defendant at the defendant’s cost.
The plaintiff to have the costs of the suit.
Dated and delivered this 21st day of October 2011.
J.K. SERGON
JUDGE
In open court in the presence of Mr. Kingori for the plaintiff N/A for the Defendant.
J.K. SERGON
JUDGE