[2017] KEELC 89 (KLR)
The court found that the plaintiff, Kathenya Ruguru, had established his claim to the land parcel at Kamathuu, Kathangari Location, as his evidence was uncontroverted due to the defendants' absence and failure to prosecute their defence and counterclaim. The court was satisfied that all parties had notice of the...
Source-derived case information.
- Citation
- [2017] KEELC 89 (KLR)
- Parties
- Plaintiff: Kathenya Ruguru; Defendant: Grace Martha Mukembu; Defendant: Mukundi Makembo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 52 of 2017
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- judgment for the plaintiff; counterclaim dismissed
- Judges
- FM Njoroge
- Legal Topics
- Ownership Dispute, Injunctions, Counterclaim Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kathenya Ruguru
Plaintiff
Grace Martha Mukembu
Defendant
Mukundi Makembo
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is the rightful owner of the land parcel at Kamathuu, Kathangari Location.
- 2 Whether the defendants' counterclaim and defence should be dismissed for want of prosecution.
- 3 Whether an injunction should issue restraining the defendants from interfering with the plaintiff's land.
Ratio Decidendi
The court found that the plaintiff, Kathenya Ruguru, had established his claim to the land parcel at Kamathuu, Kathangari Location, as his evidence was uncontroverted due to the defendants' absence and failure to prosecute their defence and counterclaim. The court was satisfied that all parties had notice of the hearing date and, in accordance with Order 12, Rule 2 of the Civil Procedure Rules, proceeded ex parte. The plaintiff's pleadings and supporting affidavit were relied upon, and the court found merit in the prayers sought. Consequently, the court declared the plaintiff as the rightful owner of the land, granted an injunction restraining the defendants from interfering with the...
Court Disposition
judgment for the plaintiff; counterclaim dismissed
Orders
- It is declared that the plaintiff’s land parcel at Kamathuu, Kathangari Location belongs to Kathenya Ruguru.
- An order of injunction is issued restraining Grace Martha Mukembu and Mukundi Makembo, their agents, servants, employees and anybody else acting at their behest or instructions from trespassing, using, transferring and/or dealing with the plaintiff’s land parcel at Kamathuu, Kathangari Location.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT CHUKA
CHUKA ELC CASE NO 52 OF 2017
FORMRLY MERU ELC CASE NO.115 OF 2016
GRACE MARTHA MUKEMBU.....................PLAINTIFF (BY COUNTERCLAIM)
VERSUS
KATHENYA RUGURU..........................1ST DEFENDANT (BY COUNTERCLAIM)
MUKUNDI MAKEMBO.......................2ND DEFENDANT (BY COUNTERCLAIM)
JUDGMENT
1. The parties took a hearing dated on 21st June, 2017. Advocate Mwiti held brief for advocate Nyenyire for the plaintiff. Advocate Ondari held brief for advocate Ndubi for the 1st and 2nd defendants. The advocates representing the parties told the court that, by consent, they had agreed that hearing of the case proceeds on 3. 10. 2017. The court obliged them. Hearing was fixed to take place on 3. 10. 2017.
2. On 3. 10. 2017, the plaintiff, Kathenya Makembu was in court.
3. In accordance with Order 12, rule 2, after the suit was called on for hearing outside the court and only the plaintiff was in court, I am satisfied that all the parties had notice that the suit was to be heard on 3. 10. 2017. I have ordered the suit to proceed exparte.
4. PW1, the plaintiff was sworn by the Bible by CA Ndegwa.
5. He told the court that he was Kathenya Ruguru, the plaintiff in this suit. He asked the court to grant him the orders he prayed for in his plaint. He told the court that he placed reliance upon his pleadings and especially his supporting affidavit sworn on 19th October, 2016 in support of his Notice of Motion application dated 19th October, 2016.
6. PW1 asked the court to dismiss the defendant’s defence and counterclaim as both were not prosecuted. He requested the court to rely on his Reply to Defence and Counter-claim sworn on 11th August, 2016 and filed in court on 16th September, 2016.
7. I have considered the evidence tendered by the plaintiff. It is not controverted.
8. In the circumstances, I find it meritorious to grant the prayers the plaintiff is seeking in his plaint.
9. The defendant’s counter-claim is dismissed.
10. Judgment is entered for the Plaintiff against the Defendant in the following terms:
a) It is hereby declared that the Plaintiff’s land parcel at Kamathuu, Kathangari Location belongs to KATHENYA RUGURU, the Plaintiff.
b) An order of injunction is hereby issued and directed to the Defendants, GRACE MARTHA MUKEMBU and MUKUNDI MAKEMBO, their agents, servants, employees and anybody else acting at their behest or instructions from trespassing, using, transferring and / or dealing with the plaintiff’s land parcel at Kamathuu, Kathangari Location.
c) It is so ordered
Delivered in open court at Chuka this 3rd day of October, 2017 in the presence of:
CA: Ndegwa
Kathenya Ruguru – Plaintiff
P.M. NJOROGE
JUDGE