[2017] KEELC 55 (KLR)
The court found that the plaintiff had established, on a balance of probabilities, that he was the beneficial owner of plot number 1978 at Emali Town Centre, having purchased it from the registered owner and taken possession. The defendant, having failed to enter appearance or file a defence, did not contest the...
Source-derived case information.
- Citation
- [2017] KEELC 55 (KLR)
- Parties
- Plaintiff: James Katua Timothy; Defendant: Mutunga Matata Kituma
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 12 of 2017
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- judgment_for_plaintiff
- Legal Topics
- Ownership Disputes, Trespass, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Katua Timothy
Plaintiff
Mutunga Matata Kituma
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is the rightful owner of plot number 1978 situated at Emali Town Centre.
- 2 Whether the defendant trespassed onto the plaintiff's property.
- 3 Whether the plaintiff is entitled to a permanent injunction and demolition order against the defendant.
Ratio Decidendi
The court found that the plaintiff had established, on a balance of probabilities, that he was the beneficial owner of plot number 1978 at Emali Town Centre, having purchased it from the registered owner and taken possession. The defendant, having failed to enter appearance or file a defence, did not contest the plaintiff's evidence. The court accepted the documentary evidence and witness testimony, concluding that the defendant's occupation constituted trespass. The plaintiff was therefore entitled to a declaration of ownership, a permanent injunction restraining the defendant from further interference, and a demolition order regarding any illegal structures erected by the defendant....
Court Disposition
judgment_for_plaintiff
Orders
- Plot number 1978 at Emali Town Centre is declared the property of the plaintiff.
- A permanent injunction restraining the defendant, his servants, relatives, and/or agents from encroaching, trespassing, building, heaping soil, alienating, or interfering with the plaintiff's possession or occupation of Plot No. 1978.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC NO. 12 OF 2017
JAMES KATUA TIMOTHY ------------------------------------------PLAINTIFF
VERSUS
MUTUNGA MATATA KITUMA ----------------------------------- DEFENDANT
JUDGEMENT
1. James Katua Timothy who is the plaintiff herein is a cashier employed by Nakumatt Supermarket. He says that he is the owner of plot number 1978situated at Emali Trading Centre. He has sued Mutunga Matata Kituma the defendant herein for trespassing upon the said plot number 1978 .
2. By his plaint dated 10/2/2017 and filed in court on 20/2/2017 the plaintiff prays for judgement against the defendant for orders:-
a) A declaration that plot no 1978 situated at Emali Town Centre is the property of the plaintiff.
b) A permanent injunction restraining the defendant either by himself, his servants, relatives and/or agents from encroaching on, trespassing on, building on heaping soil on alienating and/or interfering in any manner with the plaintiff’s peaceful possession and/or occupation of Plot No. 1978 situated at Emali Town Centre.
c) A demolition order
d) Costs and interest of the suit
e) Any other further relief that the honourable court may deem fit and just.
3. The defendant was served on 10/3/2017 with summons to enter appearance and to file his defence as can be seen from the affidavit of service dated 3/5/2017 and filed on court on 8/5/2017. Consequently the court ordered that this matter proceeds to formal proof after the defendant failed to enter appearance and to file his defence.
4. When the matter came up for hearing on 20/9/2017the plaintiff adopted his statement which he recorded on the 10/2/2017. In his evidence in chief, the plaintiff told the court that he bought the plot in question from John Kispan vide a sale agreement dated 5/11/2014 (PEXno.1). He went on to say that he is yet to transfer the plot into his name due to lack of funds and as such, the plot is still registered in John Kispan(PW1) as can be seen from the certificate of search produced as Pex No. 2. He went on to produce an allotment letter in the name of J.K Yiankaso as PEX no. 3.
5. It was his evidence that when he found the defendant having trespassed into his land, he saw the ward administrator who issued him with the letter dated 15/9/2015 (PEX no.4) and addressed to the defendant. He went on to say that he served the defendant with a demand letter to vacate the plot (PEX no .5)and to remove his illegal building and building materials from the plot but he did not respond.
6. The plaintiff’s evidence is supported by the evidence on John Kispan Yiankaso (PW1) who told the court that the plot that he sold to plaintiff was allocated to him by Olkejuado County Council on 17/3/2016. The witness went on to say that the site was thereafter identified to him by the surveyor of the County Council on the 22/5/2011 who thereafter signed and validated the sale.
7. That on the 5/11/2014 he and the plaintiff entered into an agreement upon which he took the plaintiff to the site where he identified the beacons to him. It was his evidence that he urged the plaintiff to build but he later got a complaint from the latter that the defendant herein had laid a claim onto the plot. He said that he met Mutungaand also the administrator who ruled in his favour. He revealed that even though the plot is registered in his name, the plot belongs to the plaintiff.
8. The plaintiff’s counsel filed her written submissions on the 19/10/2017. She urged the court to rule in favour of the plaintiff since he had proved his case on a balance of probability.
9. Having read the evidence on record and the submissions filed, I have no doubt that plot number 1978 belongs to the plaintiff even though it is registered in the name of Kispan(PW1).I am in agreement with plaintiff’s counsel that the plaintiff has proved his case against the defendant on a balance of probabilities. In the circumstances, I hereby proceed to enter judgement for him and against the defendants as follows:-
a) Plot no 1978 situated at Emali Town Centre be and is hereby the property of the plaintiff.
b) A permanent injunction be and is hereby issued restraining the defendant either by himself, his servants, relatives and/or agents from encroaching on, trespassing on, building on heaping soil on alienating and/or interfering in any manner with the plaintiff’s peaceful possession and/or occupation of Plot No. 1978 situated at Emali Town Centre.
c) An order of demolition be and is hereby allowed.
d) Costs and interest of the suit
It is so ordered.
Signed, Dated and Delivered this 7th day of November, 2017
MBOGO C.G
JUDGE
Mr. Hassan holding brief for Mrs. Nzao for the plaintiff
Mr. Kwemboi Court Assistant
Plaintiff present
MBOGO C.G
JUDGE
7/11/2017