[2013] KEHC 4428 (KLR)

REPUBLIC OF KENYA

High Court at Kitale

Civil Suit 116 of 2012

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JACOB KARI KAMONI :::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT.

VERSUS

EMILY CHERONO :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT.

J U D G M E N T.

The plaintiff Jacob Kari Karimonibrought this suit against the defendant Emily Cherono claiming an order for eviction against the defendant who is occupying the land which he had bought from one Jamel Kiombe Lidodo. The defendant who had been duly served with summons to enter appearance and file defence neither entered appearance nor filed defence. The plaintiff therefore obtained interlocutory judgment against her and set the case down for formal proof. At the hearing, the plaintiff testified that he bought the suit land from Jamel Kiombe Lidodo in 2009. He produced an assignment made on 14th December, 2009 as exhibit 1. The property is at Moi's Bridge. He produced a receipt for payment of land rates plaintiff Exhibit 2. He testified that he purchased the land from Jamel Kiombe Lidodo who is the husband of the defendant.During the 2007/2008 skirmishes following the December, 2007 elections, the defendant eloped with a police officer who was already married. When the wife of the police officer could not put up with her, she came back to her husband. She caused her husband and the plaintiff to be placed in cells after which the defendant was settled on the suit land. Prior to this, the plaintiff had filed a suit against the defendant in Kitale Senior Principal Magistrate's Court No. 664 of 1999. The case revolved on ownership of the suit land. The lower court decided in his favour. The defendant appealed vide Kitale High Court Civil Appeal No. 5 of 2004. her appeal against the judgment of the lower court was dismissed. He produced reasons for dismissal of the appeal given by Justice Ombija in 2008. He then wrote a demand letter through his advocate asking the defendant to vacate the suit premises. The demand was produced as exhibit 4. It is on this basis that he prays for an eviction order to issue against the defendant who is occupying a temporary structure he had erected on the suit land.

The plaintiff called PW2 Jamel Kiombe Lidodo the husband of the defendant who had sold him the suit land. This witness testified that he sold a plot to the plaintiff at Moi's Bridge. The plaintiff was given an assignment. He testified that the defendant who used to be his wife deserted him and he thereafter divorced her in court. He testified that he sold the land inorder to raise school fees for their children. He further testified that the plaintiff brought a case in court against the defendant in which the plaintiff succeeded. The defendant appealed but her appeal was dismissed. He stated that the defendant is staying on the suit land with another man and that she has no claim to the property and that therefore she should be evicted from the land.

I have gone through the plaintiff's statement of claim as well as the evidence adduced by him and that of PW2. This evidence is not controverted as there was no evidence adduced on the part of the defendant. The plaintiff has succeeded in showing that he is the owner of the suit land. There is an assignment produced. The plaintiff has also produced receipts from the County Council of Wareng showing that he has been paying rates. The plaintiff has been paying rates. The plaintiff has also shown by evidence that he had brought a case against the defendant where he succeeded but the present defendant appealed. The appeal was struck out on grounds that there was no decree included in the memorandum of appeal. There is no evidence adduced to show the nature of the property whether it was a matrimonial home of the defendant and the witness of the plaintiff herein. The proceedings in the lower court were also not produced. However, be that as it may, the plaintiff has at least established his case on a balance of probabilities. I find that he is the owner of the property in issue. His evidence has been corroborated by that of PW2 who actually sold the land to him. This being my finding, I do not see any reason which will prevent me from allowing the plaintiff's claim. The plaintiff should be evicted from the suit land under supervision of the OCS Moi's Bridge Police station. The plaintiff shall have costs of this suit.

Dated, signed and delivered at Kitale on this 20th day of March, 2013.

E. OBAGA.

JUDGE.

In the presence of Mr. Gatune for plaintiff.

CC – Joan.

E. OBAGA.

JUDGE.

20/3/2013.

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