[2016] KEELC 890 (KLR)
The court found that the applicants, as administrators of the estate of Nyevu Baya, had produced uncontroverted evidence of ownership of Chembe/Kibabamshe/178, including the title deed and official search. The defendant failed to respond or provide any evidence to challenge the applicants' claim. The court held that...
Source-derived case information.
- Citation
- [2016] KEELC 890 (KLR)
- Parties
- Plaintiff: James Katana Baya; Plaintiff: Msanzu Baya Msanzu; Defendant: Majengo Luganje
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 96 of 2015
- Procedural Posture
- Originating Summons / Judgment
- Outcome
- Applicant's motion allowed. Judgment for the plaintiffs.
- Judges
- OA Angote
- Legal Topics
- Adverse Possession, Eviction Orders, Title Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Katana Baya
Plaintiff
Msanzu Baya Msanzu
Plaintiff
Majengo Luganje
Defendant
Procedural Posture
Originating Summons / Judgment
Legal Issues
- 1 Whether the parcel of land known as Chembe Kibabamshe/178 belongs to the Estate of Nyevu Baya (deceased).
- 2 Whether an eviction order should issue against the Defendant to evict him from the parcel of land known as Chembe/Kibabamshe/178.
- 3 Whether the officer commanding Watamu police station should facilitate implementation of the court's decision by ensuring maintenance of peace during such eviction.
Ratio Decidendi
The court found that the applicants, as administrators of the estate of Nyevu Baya, had produced uncontroverted evidence of ownership of Chembe/Kibabamshe/178, including the title deed and official search. The defendant failed to respond or provide any evidence to challenge the applicants' claim. The court held that the applicants are entitled to the suit property and that the defendant's continued occupation was unlawful. Consequently, the court granted an eviction order and directed the police to facilitate its implementation, with costs awarded to the applicants.
Court Disposition
Applicant's motion allowed. Judgment for the plaintiffs.
Orders
- Parcel of land known as Chembe/Kibabamshe/178 declared to belong to the Estate of Nyevu Baya (deceased).
- Eviction order issued against the defendant from Chembe/Kibabamshe/178.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC NO. 96 OF 2015 (OS)
1. JAMES KATANA BAYA
2. MSANZU BAYA MSANZU...........................PLAINTIFF
VERSUS
MAJENGO LUGANJE....................DEFENDANT
J U D G M E N T
The Originating Motion dated 27th May, 2015 is seeking for the determination of the following issues:-
(a) Whether the parcel of land known as Chembe Kibabamshe/178 belongs to the Estate of NYEVU BAYA (deceased).
(b) Whether an eviction Order should issue against the Defendant to evict him from the parcel of land known as LAND TITLE NO.CHEMBE/KIBABAMSHE/178.
(c) Whether the officer commanding Watamu police station should facilitate implementation of this Honourable Court's decision by ensuring maintenance of peace during such eviction.
(d) Costs of this suit be provided for.
The Motion is supported by the Affidavit of the 1st Applicant who has deponed that the suit property is registered in the name of Nyevu Baya who is their late mother; that the Defendant has invaded the land and that the Defendant has refused to vacate the suit property.
Although the Respondent was served with the Motion on 13th August, 2015, he never filed a response.
PW1 informed the court that he is one of the administrators of the Estate of the late Nyevu Baya; that in the year 2000, he discovered that there were some people who had encroached on the land; that he reported the issue of encroachment to the Chief and some people left but the Defendant declined to leave the land and that despite reporting the issue of the Defendant's refusal to vacate the suit property to the police on more than one occasion, he has refused to do so.
The Applicant produced in evidence letters from the Assistant Chief, the Chief and the District Officer in which they had directed the Respondent to vacant the suit property.
The Applicant also produced the Title Deed for Chembe/Kibabamshe/178 and the official search showing that the Applicant's mother is the registered owner of the land.
Considering that the Respondent did not file a response to the Applicant's Motion, and in view of the evidence before me, I am convinced that it is the Applicants, on behalf of the deceased, who are entitled to the suit property.
For the reasons I have given above, I allow the Applicant's Motion in the following terms:-
(a) Parcel of land known as Chembe/Kibabamshe/178 belongs to the Estate of Nyevu Baya (deceased).
(b) An eviction order be and is hereby issued evicting the Defendant from a parcel of land known as Chembe/Kibabamshe/178.
(c) The officer commanding Watamu Police Station to facilitate the implementation of this order.
(d) The Respondent to pay the costs of this suit.
Dated, signed and delivered in Malindi this 20thday of May, 2016.
O. A. Angote
Judge