[2018] KEELC 4681 (KLR)
The Plaintiffs produced a sale agreement and title deeds showing they are the registered proprietors of Muputi/Kiima-Kimwe 3022 and 3023. The Defendant, despite being served, failed to enter appearance or file a defence, and did not adduce any evidence to challenge the Plaintiffs' ownership or explain his occupation...
Source-derived case information.
- Citation
- [2018] KEELC 4681 (KLR)
- Parties
- Plaintiff: James Muema; Plaintiff: Benedeta Mbithe Muema; Defendant: King’ola Mbaika
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 156 of 2016
- Procedural Posture
- Land Case / Judgment
- Outcome
- Plaintiffs' suit allowed as prayed.
- Judges
- OA Angote
- Legal Topics
- Ownership Disputes, Trespass, Eviction, Title Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Muema
Plaintiff
Benedeta Mbithe Muema
Plaintiff
King’ola Mbaika
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the Plaintiffs are the registered proprietors of Muputi/Kiima-Kimwe 3022 and 3023.
- 2 Whether the Defendant trespassed onto the suit land.
- 3 Whether the Plaintiffs are entitled to orders of eviction against the Defendant.
Ratio Decidendi
The Plaintiffs produced a sale agreement and title deeds showing they are the registered proprietors of Muputi/Kiima-Kimwe 3022 and 3023. The Defendant, despite being served, failed to enter appearance or file a defence, and did not adduce any evidence to challenge the Plaintiffs' ownership or explain his occupation of the land. Section 26(1) of the Land Registration Act provides that a certificate of title is prima facie evidence of ownership. The Plaintiffs' evidence was uncontroverted, and the court found that they had proved their case on a balance of probabilities. Accordingly, the Plaintiffs were entitled to the orders sought, including eviction of the Defendant from the suit...
Court Disposition
Plaintiffs' suit allowed as prayed.
Orders
- The Plaintiffs are declared the absolute proprietors of Muputi/Kiima-Kimwe 3022 and 3023.
- The Defendant is to be evicted from Muputi/Kiima-Kimwe 3022 and 3023.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 156 OF 2016
JAMES MUEMA .................................................... 1ST PLAINTIFF
BENEDETA MBITHE MUEMA .............................. 2ND PLAINTIFF
VERSUS
KING’OLA MBAIKA .................................................. DEFENDANT
JUDGMENT
1. In the Plaint dated 19th October, 2016, the Plaintiffs averred that they are the registered proprietors of land known as Muputi/Kiima-Kimwe 3022 and 3023; that in the year 2014, the Defendant trespassed onto the suit land and that the Defendant should be evicted from the two parcels of land.
2. Although the Defendant was served with Summons to Enter Appearance, he neither entered appearance nor filed a Defence. The matter proceeded for hearing on 6th March, 2017.
3. The 1st Plaintiff, PW1, informed the court that him, together with his wife, the 2nd Plaintiff, entered into an Agreement of Sale with Edith Mbaika for the sale of the two suit properties; that the suit land was then transferred into their joint names and that the Title Deeds were issued to them.
4. According to PW1, in April, 2014, the son of Edith Mbaika, who is the Defendant herein, trespassed on the suit properties and started building temporary structures thereon and that he should be restrained from entering the land.
5. PW2 informed the court that she indeed sold the two parcels of land to the Plaintiffs and was paid the agreed purchase price of Kshs. 1,440,000.
6. According to PW2, the Defendant, who is his son, should be evicted from the land.
7. PW3 was one of the witnesses to the agreement that was entered into between the Plaintiffs and PW2. He testified on how the said agreement was executed by all the parties.
8. The 2nd Plaintiff, PW4, also informed the court on how she jointly bought the two parcels of land with her husband.
9. The Plaintiffs’ advocate filed submissions and authorities. The Plaintiffs’ advocate submitted that the Plaintiffs have proved that they are the legal owners of the suit land.
10. The Plaintiffs produced in evidence the Sale Agreement of 13th September, 2012 in which they entered into with the Edith Mbaika, PW2.
11. The Plaintiffs also produced the Title Deeds in respect to the suit properties. The said Title Deeds shows that the Plaintiffs were registered as the proprietors of the land on 11th November, 2013.
12. The Defendant did not adduce any evidence to controvert the Plaintiffs’ evidence. In view of the provisions of Section 26(1) of the Land Registration Act which provides that the certificate of title issued by the Registrar shall be taken by the courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, I find that the Plaintiffs have proved their case on the balance of probabilities.
13. For those reasons, I allow the Plaint dated 19th October, 2016 as prayed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 26TH DAY OF JANUARY, 2018.
O.A. ANGOTE
JUDGE