[2018] KEELC 1346 (KLR)
The court found that the Plaintiff had produced documentary evidence proving registration as proprietor of L.R. No. 337/612. The Defendants failed to attend court or controvert the Plaintiff's evidence. The Plaintiff's evidence established that the Defendants unlawfully entered the land, caused damage, and attempted...
Source-derived case information.
- Citation
- [2018] KEELC 1346 (KLR)
- Parties
- Plaintiff: Islamic College Athi River; Defendant: Rashid Mbulika & 13 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 241 of 2010
- Procedural Posture
- Land and Environment Case / Judgment
- Outcome
- Plaintiff's suit allowed as prayed.
- Judges
- OA Angote
- Legal Topics
- Ownership of Land, Injunctions, Land Encroachment, Registration of Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Islamic College Athi River
Plaintiff
Rashid Mbulika & 13 Others
Defendant
Procedural Posture
Land and Environment Case / Judgment
Legal Issues
- 1 Whether the Plaintiff is the registered proprietor of L.R. No. 337/612.
- 2 Whether the Defendants unlawfully entered and damaged the Plaintiff's property.
- 3 Whether the Plaintiff is entitled to a permanent injunction against the Defendants.
Ratio Decidendi
The court found that the Plaintiff had produced documentary evidence proving registration as proprietor of L.R. No. 337/612. The Defendants failed to attend court or controvert the Plaintiff's evidence. The Plaintiff's evidence established that the Defendants unlawfully entered the land, caused damage, and attempted to interfere with the Plaintiff's proprietary rights. On a balance of probabilities, the Plaintiff proved its entitlement to the orders sought, including a permanent injunction restraining the Defendants from further interference with the suit property.
Court Disposition
Plaintiff's suit allowed as prayed.
Orders
- A permanent injunction is issued restraining the Defendants from interfering with L.R. No. 337/612.
- The Plaintiff is declared the lawful proprietor of L.R. No. 337/612.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 241 OF 2010
ISLAMIC COLLEGE ATHI RIVER............................PLAINTIFF
VERSUS
RASHID MBULIKA & 13 OTHERS.......................DEFENDANTS
JUDGMENT
1. The Plaintiff herein sued 14 Defendants vide a Plaint dated 11th November, 2010. In the Plaint, the Plaintiff averred that it is the registered proprietor of land known as L.R. Numbers 337/612 measuring 11. 41Ha; that the Plaintiff has been using the land to the exclusion of the Defendants and that the Plaintiff has developed a mosque and a school on the land.
2. The Plaintiff averred that on or about September, 2010, the Defendants, either by themselves or acting under Kitengela Muslim Association entered on the suit land and damaged the property standing thereon and that an order of permanent injunction should issue.
3. Although the Defendants were notified of the hearing date, they never attended court when the matter came up for hearing on 14th May, 2018.
4. PW1 informed the court that he is the Plaintiff’s Secretary; that the Plaintiff was registered as the proprietor of L.R. No. 337/612 on 1st July, 1973 and that it built an Islamic College and Classes on the land in 1979.
5. It was the evidence of PW1 that in the year 2008, the Defendants encroached on the suit land and caused chaos and damage; that in the year 2010, the Defendants assaulted the mosque leaders and took away the moveable properties belonging to the Plaintiff and that the Defendants were charged in court in respect to the assault and the damage that they occasioned on the suit property.
6. It was the evidence of PW1 that the Defendants’ actions are an attempt to illegally acquire the Plaintiff’s land and that they should be injuncted from doing so. PW1 produced several documents in evidence which included the Grant for L.R. No. 337/612 and the certificate of registration of the Plaintiff.
7. The Plaintiff’s Chairman, PW2, reiterated the evidence of PW1.
8. The Plaintiff’s advocate filed brief written submissions which I have considered.
9. PW1 produced in evidence the Grant that was issued to the Plaintiff in respect of a parcel of land known as L.R. No. 337/612. The Grant that was produced in evidence shows that the Plaintiff was registered as the proprietor of the suit land in the name of Machakos Islamic College Limited on 19th September, 2005. On the 10th July, 2008, the Certificate of Change of name of the Plaintiff from Machakos Islamic College Limited to Islamic College (Athi River) Limited was endorsed on the Grant as entry number 2. The land was subsequently leased to “Star-Sheikh Academy Limited” on 10th July, 2008 for ten (10) years.
10. The Defendants did not controvert the Plaintiff’s assertion that it is the registered proprietor of the suit land, and that, PW1 and PW2 are its officials. In the circumstances, and in view of the evidence before me, I find that the Plaintiff has proved its case on a balance of probabilities.
11. For those reasons, I allow the Plaintiff’s Plaint as prayed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 12TH DAY OF OCTOBER, 2018.
O.A. ANGOTE
JUDGE