[2017] KEHC 5 (KLR)
The court found that the applicant, as the registered proprietor of the suit land, is entitled to seek eviction of persons occupying the land without her consent. However, since there is a pending dispute involving the applicant and third parties (Benson Miller Sakwa Wakhole and Sarah Nyangala Mukolwe), and given...
Source-derived case information.
- Citation
- [2017] KEHC 5 (KLR)
- Parties
- Applicant: Wilkister Shiundu Malilo; Respondent: John Lusweti; Respondent: Asman Halambee Kweyu; Respondent: Emmanuel Amakobe Kweyu
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 649 of 2009
- Procedural Posture
- Succession Cause / Ruling on Notice of Motion for Eviction
- Outcome
- Application partly allowed.
- Judges
- CM Njagi
- Legal Topics
- Eviction Orders, Vacant Possession, Succession Disputes, Land Ownership, Pending Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilkister Shiundu Malilo
Applicant
John Lusweti
Respondent
Asman Halambee Kweyu
Respondent
Emmanuel Amakobe Kweyu
Respondent
Procedural Posture
Succession Cause / Ruling on Notice of Motion for Eviction
Legal Issues
- 1 Whether the applicant is entitled to eviction orders against the respondents from land Parcel No. Marama/Shinamwenyuli/1225.
- 2 Whether execution of eviction orders should await the outcome of a pending dispute involving the applicant and third parties.
Ratio Decidendi
The court found that the applicant, as the registered proprietor of the suit land, is entitled to seek eviction of persons occupying the land without her consent. However, since there is a pending dispute involving the applicant and third parties (Benson Miller Sakwa Wakhole and Sarah Nyangala Mukolwe), and given that some respondents claim to have purchased their portions from one of those third parties, the court held that eviction orders against Asman Halambee Kweyu and Emmanuel Amakobe Kweyu should not be executed until the pending dispute is resolved. The application against John Lusweti, who provided no explanation for his occupation, was allowed unconditionally, and he was ordered...
Court Disposition
Application partly allowed.
Orders
- John Lusweti to be evicted from land Parcel No. Marama/Shinamwenyuli/1225 within 14 days after service of the order.
- Eviction orders against Asman Halambee Kweyu and Emmanuel Amakobe Kweyu are granted but execution is stayed pending the outcome of the dispute between the petitioner and Benson Miller Sakwa Wakhole and Sarah Nyangala Mukolwe.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION CAUSE NO.649 OF 2009
IN THE MATTER OF THE ESTATE OF WELLINGTON NYANGULE MULAMA – DECEASED
WILKISTER SHIUNDU MALILO............................................. APPLICANT
VERSUS
JOHN LUSWETI
ASMAN HALAMBEE KWEYU
EMMANUEL AMAKOBE....................................................RESPONDENTS
RULING
1. The petitioner/applicant herein Wilkister Shiundu Malilo has filed a notice of motion dated 7th November, 2016 seeking for orders that the three respondents – John Lusweti, Asman Halambee Kweyu and Emmanuel Amakobe Kweyu - be evicted from land Parcel No. Marama/Shinamwenyuli/1225 and give vacant possession to the petitioner.
2. The grounds in support of the application are that the petitioner is the sole proprietor of the suit land. That the respondents have encroached on the suit land without the consent/knowledge of the applicant.
The respondents were served with the application but they did not file any response.
3. I have perused the court file and I have noted that the matter is pending hearing of a dispute between the petitioner and two other parties – Benson Miller Sakwa Wakhole and Sarah Nyangala Mukolwe. Sarah has already testified in the case. There are statements of her witnesses in the court file. One of the statements is that of Asman Alambee Kweyu who alleges that he bought his portion of land from Sarah Nyangala Mukolwe. The petitioner cannot thereby evict the said Asman Alambee Kweyu before her case with Sarah Mukolwe is over.
4. The other statement in the court file is that of Emmanuel Malala Amakobe. I do not know the relationship of the said person and Emmanuel Amakobe Kweyu or whether it is the same person. Emmanuel Malala Amakobe says that he bought his parcel of land from Sarah Nyangala.
I have not seen any statement of John Lusweti.
5. The three respondents were served with the application dated 7th November 2016 but they did not file a response. There is no reason why John Lusweti is in occupation of the petitioner’s land. I thereby allow the application against him and order that he be evicted 14 days after service of the order.
The application against Asman Halambee Kweyu and Emmanuel Amakobe Kweyu is allowed but the execution of the orders is to await the outcome of the dispute between the petitioner and Benson Miller Sakwa Wakhole and Sarah Nyangala Mukolwe. However, if the petitioner loses the case against the other two, the application will stand dismissed.
Orders accordingly.
Delivered, dated and signed at Kakamega this 5th day of April , 2017.
J. NJAGI
JUDGE