[2015] KEELC 534 (KLR)
The court found that the plaintiff had proved, on a balance of probabilities, that he was the beneficial owner of Plot No. 41 at Sook location, West Pokot County, based on the original allocation, subsequent demarcation, and corroborating testimony from a member of the allocation committee. The defendant's failure...
Source-derived case information.
- Citation
- [2015] KEELC 534 (KLR)
- Parties
- Plaintiff: James Lokor Rionolima; Defendant: Simon Lokelima
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 59 of 2004
- Procedural Posture
- Land Case / Judgment
- Outcome
- Judgment for the plaintiff.
- Judges
- EO Obaga
- Legal Topics
- Beneficial Ownership, Land Allocation, Trespass, Permanent Injunction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Lokor Rionolima
Plaintiff
Simon Lokelima
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the plaintiff is the beneficial owner of Plot No. 41 at Sook location in West Pokot County.
- 2 Whether the defendant has trespassed onto the plaintiff's land and should be restrained by permanent injunction.
Ratio Decidendi
The court found that the plaintiff had proved, on a balance of probabilities, that he was the beneficial owner of Plot No. 41 at Sook location, West Pokot County, based on the original allocation, subsequent demarcation, and corroborating testimony from a member of the allocation committee. The defendant's failure to contest the claim or present evidence left the plaintiff's case uncontroverted. The court held that the defendant had encroached on the plaintiff's land and interfered with his access to water and pasture, constituting trespass. Accordingly, the court granted a declaration of ownership and issued a permanent injunction restraining the defendant from further trespass.
Court Disposition
Judgment for the plaintiff.
Orders
- A declaration that the plaintiff is the beneficial owner of Plot No. 41 at Sook location in West Pokot County.
- A permanent injunction restraining the defendant, his agents, servants and anyone claiming through him from continuing to trespass into Plot No. 41 at Sook location, West Pokot County.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 59 OF 2004
JAMES LOKOR RIONOLIMA............................PLAINTIFF
VERSUS
SIMON LOKELIMA..........................................DEFENDANT
J U D G E M E N T
INTRODUCTION
The Plaintiff is a beneficial owner of Plot No. 41 at Sook location in West Pokot County. He filed a suit against the defendant on 21/5/2004 seeking the following reliefs;-
(a) A declaration that he is the beneficial owner of all that parcel of land known as Plot No. 41 situated at Sook location of West Pokot County.
(b) An order of Permanent injunction restraining the defendant, his agents, servants and or those claiming through him from continuing to trespass into any part of the said Plot No. 41 (suit land).
The defendant was duly served with summons to enter appearance and file defence but did not do so. The case proceeded by way of formal proof. A judgement was delivered in favour of the plaintiff on 9/12/2010. The defendant engaged the services of a lawyer who applied to set aside the ex-parte Judgement. The ex-parte judgement was set aside. The defendant had initially engaged the firm of Anne Kibe & Co. Advocates. He later changed to David Ingosi & Co. Advocates. The firm of David Ingosi & Co. Advocates applied to court to cease acting for the defendant. This application was allowed on 28/7/2014. The plaintiff then took a hearing date and served the defendant. On the hearing date, the defendant did not turn up in court. The hearing proceeded in his absence after the court was satisfied that he was property served.
PLAINTIFF'S CASE
The Plaintiff testified that in 1972 when he was in class three, the plots allocation committee allotted him land which was 35 acres. He was allotted the land because he was an orphan. In 1984, the plots which had been allotted were re-demarcated. The plot boundaries were marked by cutting the indigenous trees along the boundary.
In 1991 the defendant came to Sook location area and bought 4 acres from his neighbour. In 1995 the defendant went and put up a house on a plot belonging to a third party. He then annexed the area between where he has constructed a house and his four acres which he had bought. The area therefore became one stretch which in the process took about 4 ½ acres of the plaintiff's land. The defendant then fenced the 4 ½ acres thus blocking the plaintiff's access to a watering area and pasture for his animals.
The Plaintiff made a complaint to the area District Officer who asked the defendant not to obstruct the plaintiff's access to the river and grazing area.
ANALYSIS OF PLAINTIFF'S EVIDENCE
6. The plaintiff produced a document [Exhibit 1] from Sook Land allocation committee showing that on 16/8/1984 there was re-demarcation by the committee which resulted in minor adjustments. The boundaries were marked by cutting tress along the boundary. He also produced a letter dated 12/1/2004 [exhibit 2] confirming that there was a dispute between him and the defendant.
7. The Plaintiff called PW2 Lotim Chuliokoi. This witness testified that he was among those who were in the demarcation committee in 1972. This witness testified that he has been aware about a dispute between the plaintiff and the defendant over the defendant's encroachment into the plaintiff's land. The evidence of the plaintiff has not been controverted as the defendant did not testify. The plaintiff has proved on a balance of probabilities that he was allotted Plot No. 41 at Sook location. PW2 who was present during the Plot allocation confirmed that indeed the plaintiff was given land and that he is aware that the defendant has encroached on to the plaintiff's land.
DETERMINATION
Having found that the plaintiff has proved his case against the defendant, I grant the following relief;-
(i) A declaration that the Plaintiff is the beneficial owner of Plot No. 41 at Sook location in West Pokot County.
(ii) A permanent injunction restraining the defendant, his agents, servants and anyone claiming through him from continuing to trespass into plot No. 41 at Sook location West Pokot County.
(iii) Costs of this suit.
Dated, signed and delivered at Kitale on this 23rd day of April, 2015.
E. OBAGA
JUDGE
In the Presence of Mr Kisa for Mr Samba for Plaintiff. Court Clerk – Kassachoon.
E. OBAGA
JUDGE
23/04/2015