[2011] KEHC 2983 (KLR)
The court found that the plaintiff was the lawful allottee of the suit property, supported by documentary evidence including the allotment letter, charge, and receipts. The defendant failed to demonstrate any interest in the suit property and confirmed his own land was PLOT NO.1241 NDEMI SCHEME. However, as neither...
Source-derived case information.
- Citation
- [2011] KEHC 2983 (KLR)
- Parties
- Plaintiff: Fredrick Waweru; Defendant: Duncan Nganga Ngware (substituted by Joseph Ngware)
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 346 of 2008
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaintiff awarded costs; no injunctive, eviction, or damages orders granted.
- Judges
- SP Ouko
- Legal Topics
- Trespass to Land, Injunctions, Eviction, Settlement Schemes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Waweru
Plaintiff
Duncan Nganga Ngware (substituted by Joseph Ngware)
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendant trespassed on the plaintiff's allotted land, PLOT No.856-NDEMI SETTLEMENT SCHEME.
- 2 Whether the plaintiff is entitled to an injunction, eviction order, or general damages for trespass against the defendant.
- 3 Whether the defendant or his agents remain in occupation of the suit property.
Ratio Decidendi
The court found that the plaintiff was the lawful allottee of the suit property, supported by documentary evidence including the allotment letter, charge, and receipts. The defendant failed to demonstrate any interest in the suit property and confirmed his own land was PLOT NO.1241 NDEMI SCHEME. However, as neither the defendant nor his family remained on the suit property at the time of hearing, and there was no evidence that those currently on the land were his agents or servants, the court held that injunctive relief, eviction, or a declaration of trespass against the defendant would serve no practical purpose. The court further noted that the prayer for general damages had been...
Court Disposition
Plaintiff awarded costs; no injunctive, eviction, or damages orders granted.
Orders
- Subject to the plaintiff paying the balance on his loan, the Settlement Fund Trustee may consider discharging the charge to enable him obtain the title to the suit land.
- Costs to the plaintiff.
Full Case Text
Judgment text and source record
19 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL CASE NO.346 OF 2008
FREDRICK WAWERU……………………….....…….PLAINTIFF
VERSUS
DUNCAN NGANGA NGWARE…………………. DEFENDANT
JUDGMENT
The plaintiff, Fredrick Waweru filed this suit against the defendant, Duncan Nganga Ngware initially in Nairobi as HCCC No.1988/1992 claiming that the latter is a trespasser and seeking that he be restrained by an injunction from constructing, cultivating, grazing, fencing or interfering with PLOT No.856-NDEMI SETTLEMENT SCHEME (the suit property) in Nyandarua District. He also sought the eviction of the defendant, general damages for trespass and costs of the suit.
On 31st March, 1993, the defendant filed a defence in which he denied entering the suit property but maintained that he is in occupation of his parcel of land known as PLOT NO.1241 NDEMI SCHEME. Subsequently the defendant died and this case was transferred to Nakuru High Court for hearing and disposal.
On 29th April, 2010, Maraga, J ordered that the deceased defendant be substituted in these proceedings by his son, Joseph Ngware. Joseph Ngware has not participated in the hearing of this case as he failed to attend court despite service with a hearing notice.
The plaintiff proceeded exparte and stated as follows:
On 16th June, 1981, he applied to the Settlement Fund Trustee to be allotted land in Ndemi Settlement Scheme. On 19th august, 1982, his application was approved and an allotment letter in his favour issued. The Settlement Fund Trustee advanced to him a loan of Kshs.12,204/= payable within twenty-eight (28) years. He was about to settle the loan when in 1992 the defendant invaded the suit land with his livestock claiming that he had exchanged it with PLOT NO.1241 NDEMI, hence this suit.
I have considered that testimony and all the documents relied upon by the plaintiff to support his claim as well as his advocate’s written submission. From that evidence, the plaintiff has demonstrated to my satisfaction that the suit property was allotted to him; that he had been repaying the loan from Settlement Fund Trustee until the invasion by the defendant; that the defendant has not demonstrated any interest in the suit property and has, as a matter of fact, confirmed that his parcel of land is PLOT NO.1241 DEMI SCHEME. All the documents, including the plaintiff’s application for allotment, an approval, an allotment letter, a charge and receipts, show that the suit property was allotted to the plaintiff.
In his testimony before the court, he confirmed that the deceased defendant’s family, including his substituted son are not on the suit property. But there are persons who have also invaded the suit land. That being so, no purpose will be served in granting an injunction to restrain the defendant, his agents or servants if he is no longer on the suit property and without proof that those on the land are his servants or agents. Similarly, a declaration that he (the defendant) is a trespasser or an order of eviction are of no use for the same reason that the defendant and his family are not on the suit land. The prayer for general damages appears to have been abandoned.
In the result, it will suffice to state that subject to the plaintiff paying the balance on his loan, the Settlement Fund Trustee may consider discharging the charge to enable him obtain the title to the suit land after a delay of nearly nineteen (19) years caused by the suit.
Costs to the plaintiff.
Dated, Delivered and Signed at Nakuru this 29th day of March, 2011.
W. OUKO
JUDGE