[2015] KEHC 2595 (KLR)
The court found that the plaintiff was the registered owner of the suit land, having obtained title through a lawful process. The defendant failed to establish any legal right or claim to the land and was found to have entered and occupied the plaintiff's property without consent or color of right. The court held...
Source-derived case information.
- Citation
- [2015] KEHC 2595 (KLR)
- Parties
- Plaintiff: Gladys Nasimiyu Luka; Defendant: Moses Wanjala Khisa
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 343 of 2013
- Procedural Posture
- Land Case / Judgment
- Outcome
- Judgment for the plaintiff; permanent injunction and eviction granted.
- Judges
- SN Mukunya
- Legal Topics
- Land Ownership, Trespass, Permanent Injunction, Eviction, Title Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gladys Nasimiyu Luka
Plaintiff
Moses Wanjala Khisa
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the plaintiff is the lawful owner of land parcel E. Bukusu/N.Kanduyi/6920.
- 2 Whether the defendant unlawfully entered and occupied the plaintiff's land.
- 3 Whether the plaintiff is entitled to a permanent injunction and eviction orders against the defendant.
Ratio Decidendi
The court found that the plaintiff was the registered owner of the suit land, having obtained title through a lawful process. The defendant failed to establish any legal right or claim to the land and was found to have entered and occupied the plaintiff's property without consent or color of right. The court held that the proprietary rights of the plaintiff must be respected and that she is entitled to exclusive possession. Consequently, the court ordered the defendant to vacate the land, remove his structures, and issued a permanent injunction restraining him and his agents from interfering with the plaintiff's land. The court further ordered that if the defendant failed to vacate within...
Court Disposition
Judgment for the plaintiff; permanent injunction and eviction granted.
Orders
- The defendant shall move and vacate the plaintiff's land parcel E. Bukusu/N.Kanduyi/6920.
- The defendant shall remove all his structures from the land.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
ENVIRONMENT AND LAND CASE NO. 343 OF 2013
GLADYS NASIMIYU LUKA… ….……….............. PLAINTIFF\APPLICANT
VERSUS
MOSES WANJALA KHISA ……………..….DEFENDANT/RESPONDENT
JUDGMENT
[1]. The plaintiff GLADYS NASIMIYU LUKA is the registered owner of land reference number E. Bukusu/N.Kanduyi/6920. She was registered as the owner of the same on 4th June 2013. The land was previously owned by Gaudencia Mutenyo Webale who obtained the consent of the Bungoma Land Control Board to transfer to her on 12th February 2013. She has certificate of title.
[2]. Her claim against the defendant is that the defendant in this case without any claim of right has encroached and entered her land where he constructed a house and planted crops therein without any regard to the owners interests. She said that all her efforts to have the defendant move and vacate her land and to demolish the structures he has erected therein has failed. She asks for an order of permanent injunction restraining the defendant, by himself, servants or agents or otherwise from interfering with possession and use of land parcel No. E. Bukusu/S. Kanduyi/6920 in any manner.
[3]. In her evidence, she said the plaintiff has his own land. That the defendant invaded her land. She produced all documents to show that she is the legal owner of the land. She stated that she was given the land by Gaudenciea Mutenyo the wife of her father.
She called Joseph Webala Wahichu who said he lives at Kiminini and that he knows the plaintiff. He said that the defendant invaded the land of the plaintiff. He stated that the defendant has his own land. On cross examination, the witness said that he was the brother to the defendant’s father. That he entered the plaintiffs land by force.
[4]. That the defendant has his own land. The defendant in his defence said that the land was not the plaintiffs but his . That he lives on parcel no. 567. That parcel 567 was the original parcel and the suit land is the subdivision of the said parcel 567.
[5]. After having heard the parties, I am convinced, on the balance of probabilities, that the defendant has entered the plaintiff’s land without any colour of right. I am also convinced that he has his own piece of land where he should stay. The proprietary rights of the plaintiff should be respected. She should be left alone to enjoy the same without any interference by the defendant.
[6]. I do order that the defendant do move and vacate out of the plaintiffs land. He shall remove all his structures therein. If he shall not do so within 30 days he shall be forcibly evicted by the court bailiff of this court. He shall be responsible for the costs of such eviction if he does not do so in the time herein stated.
[7]. A permanent injunction is issued against him, preventing his servants and agents from interfering with the plaintiffs land, the plaint is granted as prayed therein.
The plaintiff shall have the costs of this suit.
DATED at BUNGOMA this 22nd day of September 2015.
S. MUKUNYA
JUDGE