[2017] KEELC 1154 (KLR)
The court found that the plaintiff failed to prove ownership of the suit land on a balance of probabilities. The plaintiff relied on a letter of allocation but did not call the maker or an officer from the land adjudication office to authenticate the document or confirm the status of adjudication. The plaintiff also...
Source-derived case information.
- Citation
- [2017] KEELC 1154 (KLR)
- Parties
- Plaintiff: James Lekakeny; Defendant: Benjamin K Cheruiyot; Defendant: Zachary Mose Nyanchoka; Defendant: Julius Kipkorir Langat; Defendant: Nariku Muran Enole Keis; Defendant: Ouko Mogoi; Defendant: Mary Nakupoi Lekokel
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 337 of 2017
- Procedural Posture
- Land Dispute / Judgment
- Outcome
- suit dismissed
- Judges
- MN Kullow
- Legal Topics
- Adjudication Process, Eviction Orders, Proof of Ownership
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Lekakeny
Plaintiff
Benjamin K Cheruiyot
Defendant
Zachary Mose Nyanchoka
Defendant
Julius Kipkorir Langat
Defendant
Nariku Muran Enole Keis
Defendant
Ouko Mogoi
Defendant
Mary Nakupoi Lekokel
Defendant
Procedural Posture
Land Dispute / Judgment
Legal Issues
- 1 Whether the plaintiff has proved ownership of plot No. 292 in Nkararo adjudication section on a balance of probabilities.
- 2 Whether the plaintiff is entitled to eviction orders against the defendants.
Ratio Decidendi
The court found that the plaintiff failed to prove ownership of the suit land on a balance of probabilities. The plaintiff relied on a letter of allocation but did not call the maker or an officer from the land adjudication office to authenticate the document or confirm the status of adjudication. The plaintiff also failed to explain why no title had been issued. As a result, the court held that the plaintiff had not established his right to the land and was not entitled to the drastic remedy of eviction. The suit was dismissed for lack of proof.
Court Disposition
suit dismissed
Orders
- The suit is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 337 OF 2017
JAMES LEKAKENY…......……..................................................PLAINTIFF
-VERSUS-
BENJAMIN K CHERUIYOT………………..…………..1ST DEFENDANT
ZACHARY MOSE NYANCHOKA…….....….………....2ND DEFENDANT
JULIUS KIPKORIR LANGAT……….………………....3RD DEFENDANT
NARIKU MURAN ENOLE KEIS………………………..4TH DEFENDANT
OUKO MOGOI………………………………….............5TH DEFENDANT
MARY NAKUPOI LEKOKEL……………………..........6TH DEFENDANT
JUDGEMENT
The Plaintiff had commenced the suit herein by way of plaint. The Plaintiff avers that he is a resident of Nkararo Location which is part of Nkararo Adjudication Section that was opened in May 1985 and that he was the Original Allotte and Occupant of plot No. 292.
The Plaintiff avers that while he was in occupation the members of the adjudication committee allocated his committee allocated his plot and others to other people allegedly from Siria clan while he and the others who were from the Moitanik and Uasin Gishu were left out.
The Plaintiff alleges that sometime in December, 2014 the Defendants encroached upon his land and started cutting down trees, tilling the land and continued to do so and hence he seeks for the court’s intervention to have the Defendants evicted from the suit land.
The Defendants herein were served with the plaint and summons to enter appearance but they neither filed or entered appearance or filed a defence.
On 4th May, 2017 when the matter came up for hearing the Defendants did not appear in court even though the plaintiff had served them with a hearing notice.
The Plaintiff in his evidence stated that in the year 2014 there was an adjudication that was done and he was allocated plot No. 292 in Nkararo adjudication section and to this Plaintiff produced a letter to confirm the said allocation which was marked as plaintiff exhibit No. 1.
The Plaintiff further stated that the Defendants invaded the suit land and destroyed crops thereon and they started to cultivate the land themselves and he thus seeks the court’s intervention to have the defendants evicted from the suit land and he paid the costs of the suit.
At the conclusion the counsel appearing for the Plaintiff stated he wishes not to make any submissions and therefore the court do determine the suit relying upon the evidence of the Plaintiff as he will not make any submissions.
I have looked at the pleadings filed and the testimony of the Plaintiff who is the witness in the matter and the issue for determination is whether the Plaintiff has offered his case on a balance of probabilities to warrant the orders he seeks the court to grant.
In the plaint filed in court on 11th February, 2015 the Plaintiff states that the Nkararo adjudication section started in 1985 and he was the original allottee and occupant of plot No. 292. The Plaintiff too had produced a letter dated 22nd December, 2014 which is addressed To Whom It May Concern. The plaintiff has not called the maker of that particular document and/or an officer from the office of land adjudication section to confirm its contents. The Plaintiff has not stated whether the adjudication has been concluded and why he was not issued with title to the suit land.
The Plaintiff is seeking such drastic orders of eviction without proving ownership that he is indeed the lawful and/or right owner of the land and therefore has failed to proof his case on a balance of probability and I therefore decline to issue the order prayed for and dismiss the suit with no orders as to costs.
DATED, SIGNED and DELIVERED in open court at NAROK on this 3RD day of NOVEMBER, 2017.
Mohamed N. Kullow
Judge
3/11/17
In the presence of:
N/A for the parties.
CA:Chuma