[2018] KEELC 1093 (KLR)
The Plaintiffs established, through uncontroverted evidence, that they are the registered proprietors of parcel Ikalaasa/Ndithini/790, having purchased it from the 1st Defendant and obtained a Title Deed. The Defendants, despite being served, failed to contest the claim or provide any defence. The court found that...
Source-derived case information.
- Citation
- [2018] KEELC 1093 (KLR)
- Parties
- Plaintiff: Janet Mumbua Nzyoki; Plaintiff: Meli Nzioki Muia; Defendant: Musyoka Mulandi; Defendant: Makau Musyoka
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 163 of 2016
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Plaintiffs' claim allowed. Permanent injunction granted. Costs awarded to Plaintiffs.
- Judges
- OA Angote
- Legal Topics
- Trespass to Land, Permanent Injunction, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Janet Mumbua Nzyoki
Plaintiff
Meli Nzioki Muia
Plaintiff
Musyoka Mulandi
Defendant
Makau Musyoka
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the Plaintiffs are the lawful proprietors of parcel Ikalaasa/Ndithini/790.
- 2 Whether the Defendants trespassed and interfered with the Plaintiffs' possession of the suit land.
- 3 Whether the Plaintiffs are entitled to a permanent injunction and costs.
Ratio Decidendi
The Plaintiffs established, through uncontroverted evidence, that they are the registered proprietors of parcel Ikalaasa/Ndithini/790, having purchased it from the 1st Defendant and obtained a Title Deed. The Defendants, despite being served, failed to contest the claim or provide any defence. The court found that the Plaintiffs' rights as registered proprietors are protected under Article 40(1) of the Constitution and Section 26 of the Land Registration Act. The Defendants' actions in entering and interfering with the suit land amounted to trespass. Consequently, the Plaintiffs were entitled to a permanent injunction restraining the Defendants from further interference, as well as costs...
Court Disposition
Plaintiffs' claim allowed. Permanent injunction granted. Costs awarded to Plaintiffs.
Orders
- A permanent injunction is issued restraining the Defendants, their agents and/or servants from alienating, disposing, entering, trespassing or interfering in any manner whatsoever in parcel of land known as Ikalaasa/Ndithini/790.
- The Defendants to pay the costs of the suit.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 163 OF 2016
JANET MUMBUA NZYOKI.....................................1ST PLAINTIFF
MELI NZIOKI MUIA................................................2ND PLAINTIFF
VERSUS
MUSYOKA MULANDI...........................................1ST DEFENDANT
MAKAU MUSYOKA..............................................2ND DEFENDANT
JUDGMENT
1. In the Plaint dated 21st October, 2016, the Plaintiffs averred that on 4th October, 1999 and 26th March, 2004, the 2nd Plaintiff purchased 1. 07Ha from the 1st Defendant for Kshs. 90,000; that the 2nd Plaintiff paid the full amount and took possession of parcel of land known as Ikalaasa/Ndithni/790 (the suit land) and that on 8th July, 2016, the Defendants entered the suit land and purported to remove the boundaries and fence from the suit land.
2. Being the registered proprietors, the Plaintiffs are praying for a permanent injunction restraining the Defendants from dealing with the suit land. The Plaintiffs are also seeking for general damages for trespass.
3. Though the Defendants were served, they neither entered appearance nor filed a Defence. The matter proceeded for formal proof on 1st March, 2018.
4. The 2nd Plaintiff, PW1, informed the court that he is one of the registered proprietors of parcel of land known as Ikalaasa/Ndithini/790 together with the 1st Plaintiff who is her daughter; that they purchased the suit land from the 1st Defendant whom they paid the full purchase price of Kshs. 90,000 and that they took possession of the land. According to PW1, the Defendants trespassed on the suit land and started interfering with the beacons and the fence. They also stopped them from developing the suit land. PW1 informed the court that the Defendants should be restrained from interfering with their peaceful possession of the suit land.
5. The 2nd Plaintiff produced in evidence the several Sale Agreements that she entered into with the Defendants. The 2nd Plaintiff also produced in evidence the Title Deed that was issued in her favour and the 1st Plaintiff on 12th January, 2014. Considering that the Defendant has not rebutted the Plaintiffs’ case, and in view of the provisions of Article 40(1) of the Constitution and Section 26 of the Land Registration Act, I find that the Plaintiffs have proved their claim on a balance of probability.
6. For those reasons, I allow the Plaint dated 21st October, 2016 in the following terms:
a. A permanent injunction be and is hereby issued restraining the Defendants, their agents and or servants from alienating, disposing, entering, trespassing or interfering in any manner whatsoever in parcel of land known as Ikalaasa/Ndithini/790.
b. The Defendants to pay the costs of the suit.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 19TH DAY OF OCTOBER, 2018.
O.A. ANGOTE
JUDGE