[2014] KEHC 5414 (KLR)
The court found that the Plaintiff had established, through unchallenged documentary evidence, that his late father was allocated the suit property by the Settlement Fund Trustee and had substantially paid the required charges. The Defendant, having failed to appear or contest the claim, left the Plaintiff's...
Source-derived case information.
- Citation
- [2014] KEHC 5414 (KLR)
- Parties
- Plaintiff: Ibrahim Katana Karisa; Defendant: Sulubu Hazizi
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Land Case 113 of 2013
- Procedural Posture
- Land Case / Judgment
- Outcome
- Plaintiff's suit allowed as prayed.
- Judges
- OA Angote
- Legal Topics
- Ownership Disputes, Eviction, Settlement Scheme Allocation, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ibrahim Katana Karisa
Plaintiff
Sulubu Hazizi
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the Plaintiff's late father was the lawful allottee of parcel number 319 in Magarini settlement scheme.
- 2 Whether the Defendant unlawfully occupied and interfered with the suit property.
- 3 Whether the Plaintiff is entitled to an order of eviction and permanent injunction against the Defendant.
Ratio Decidendi
The court found that the Plaintiff had established, through unchallenged documentary evidence, that his late father was allocated the suit property by the Settlement Fund Trustee and had substantially paid the required charges. The Defendant, having failed to appear or contest the claim, left the Plaintiff's evidence unrebutted. The absence of a formal title did not defeat the Plaintiff's claim, as the allocation and payment documents sufficiently established beneficial ownership. The Plaintiff was therefore entitled to the orders sought, including eviction of the Defendant and a permanent injunction restraining further interference with the property.
Court Disposition
Plaintiff's suit allowed as prayed.
Orders
- The Defendant is evicted from parcel number 319, Magarini settlement scheme.
- A permanent injunction is issued restraining the Defendant from interfering with the suit property.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
LAND CASE NO. 113 OF 2013
IBRAHIM KATANA KARISA..............PLAINTIFFS/APPLICANTS
=VERSUS=
SULUBU HAZIZI................................DEFENDANT/RESPONDENT
JUDGMENT
Introduction
The Plaintiff moved this court by way of a Plaint dated 1st July 2013. In the Plaint, the Plaintiff has averred that his late father owned parcel of land number 319 located within Magarini settlement scheme in Kilifi County which the Defendant has continued to interfere with.
It is the Plaintiff's averment that the Defendant has from the year 2012 been living on the suit property and has completely obstructed the deceased's beneficiaries from accessing the suit land. The Plaintiff is praying for an order evicting the Defendant and for a permanent injunction restraining the Defendant from interfering with the suit property.
Although the Defendant was served with the Summons to Enter Appearance, he did not enter appearance or file a Defence. The matter proceeded for formal proof on 4th March 2013.
The Plaintiff's case:
The Plaintiff, Pw1 informed the court that the suit property belongs to his late father. The Plaintiff produced the Certificate of Death in respect to his late father and the limited letters of administration as exhibits 1 and 2 respectively. The Plaintiff also produced as exhibits number 4(a) -(e) the receipts issued by the Settlement Fund Trustee showing the payment his late father paid in respect to plot number 485 and plot number 319.
Pw1 also produced the copy of the charge by the Settlement Fund Trustee dated 27th July 1982 for plot number 485 and another charge document for plot number 319 as exhibits 5 and 7 respectively.
It is the Plaintiff's testimony that the Defendant is using the suit property and has prevented the Plaintiff and his siblings from using the land.
The Plaintiff's mother, Pw2, informed the court that her late husband is the owner of the suit property and that the Defendant has no right to remain on the land.
Analysis and findings:
The Plaintiff produced in evidence the receipts showing that his late father was allocated parcel of land number 319 in Magarini settlement scheme by the Settlement Fund Trustee (SFT). The SFT charged the suit property on 9th December 1996. According to the charge document which was produced as exhibit number 7, the principal amount that was payable to SFT was Kshs. 6,865. The Plaintiff's late father paid to SFT Kshs.6,780 being the loan repayment on 17th January 2012.
Although the Plaintiff did not produce any title document in respect to the suit property, the documents produced in court shows that the suit property was allocated to Plaintiff's father by the Settlement Fund Trustees who charged it. The Plaintiff's father made payments to the SFT to offset the amount due. That evidence was not challenged by the Defendant.
In the circumstances, I find that the Plaintiff has proved his case on a balance of probabilities. I therefore allow the Plaintiff's Plaint dated 1st July 2013 as prayed.
Dated and delivered in Malindi this8thday of May, 2014.
O. A. Angote
Judge