[2019] KEELC 4494 (KLR)
The court found that the plaintiff had established, on a balance of probabilities, that he was the lawful owner of plots Nos. 1608 and 1369 Milimani Settlement Scheme. The plaintiff produced sufficient documentary evidence, including sale agreements, letters of offer, payment receipts, and a surveyor's report...
Source-derived case information.
- Citation
- [2019] KEELC 4494 (KLR)
- Parties
- Plaintiff: Jeremiah Chebet Kibor; Defendant: Samwel Akuta; Defendant: Wilson Aberit; Defendant: Samson Emare
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 72 of 2018
- Procedural Posture
- Land and Property Suit / Ex Parte Judgment
- Outcome
- Judgment for the plaintiff; eviction and permanent injunction granted; costs awarded to plaintiff.
- Judges
- FM Njoroge
- Legal Topics
- Eviction, Trespass, Ownership Dispute, Permanent Injunction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah Chebet Kibor
Plaintiff
Samwel Akuta
Defendant
Wilson Aberit
Defendant
Samson Emare
Defendant
Procedural Posture
Land and Property Suit / Ex Parte Judgment
Legal Issues
- 1 Whether the plaintiff is the lawful owner of plots Nos. 1608 and 1369 Milimani Settlement Scheme.
- 2 Whether the defendants trespassed and unlawfully occupied the plaintiff's land.
- 3 Whether the plaintiff is entitled to an eviction order and permanent injunction against the defendants.
Ratio Decidendi
The court found that the plaintiff had established, on a balance of probabilities, that he was the lawful owner of plots Nos. 1608 and 1369 Milimani Settlement Scheme. The plaintiff produced sufficient documentary evidence, including sale agreements, letters of offer, payment receipts, and a surveyor's report confirming the defendants' encroachment. The defendants, despite being served, failed to file any defence or appear in court. The court held that the plaintiff was entitled to an eviction order and a permanent injunction, as the defendants' continued occupation amounted to trespass. The court also awarded costs to the plaintiff, finding no justification for the defendants' actions or...
Court Disposition
Judgment for the plaintiff; eviction and permanent injunction granted; costs awarded to plaintiff.
Orders
- An order for eviction of the defendants, their agents, servants, employees, children, family members and/or any one claiming under them from the plaintiff’s 2.5 acres or thereabout being plots Nos. 1608 and 1369 Milimani Settlement Scheme.
- A permanent injunction against the defendants and their agents restraining them from interfering in any manner whatsoever with the plots Nos. 1608 and 1369 Milimani Settlement Scheme.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
ELC NO. 72 OF 2018
JEREMIAH CHEBET KIBOR…..………………PLAINTIFF
VERSUS
SAMWEL AKUTA………………..………..1ST DEFENDANT
WILSON ABERIT………………………..2ND DEFENDANT
SAMSON EMARE…………………………3RD DEFENDANT
JUDGMENT
1. The plaintiff commenced this proceedings with a plaint dated 27th July, 2018 filed in court on the same day. He prayed for judgement against the defendants for:
(a) An order for eviction of the defendants, their agents, servants, employees, children, family members and or any one claiming under them from the plaintiff’s 2. 5 acres or thereabout being part of the plaintiff’s land plot Nos. 1608 and 1369 Milimani Settlement scheme.
(b) A permanent injunction.
(c) Costs.
(d) Any other relief the court deems just and fit to grant.
2. There is an affidavit of service sworn by one Godfrey Masinde Sitati on the 3rd September 2018 stating that the defendants were each served with plaint and summons in this matter. I am satisfied that they were so served. However none of the defendants filed any appearance or defence in this matter and the suit proceeded ex parte on the 29th January 2019 when the plaintiff alone testified in favour of his case.
3. The plaintiff’s claim is that he is the lawful owner of plots numbers 1608and1369 Milimani Settlement Scheme and that in the year 2017 the defendants invades and trespassed upon the two parcels of land.
4. Despite the involvement of the local administration the plaintiff has not succeeded in getting the defendants out of his said parcels of land hence this suit.
5. The plaintiff commissioned the services of a surveyor who confirmed that the defendants have trespassed upon the plaintiff’s parcels of land aforesaid.
6. he produced the agreement dated 6/8/2012 showing that he purchased plot number 1369 from one Nathan Kiplagat Kiptoo, a copy of a letter of offer to the said Nathan, an original copy of a letter dated 30/1/2001 reflecting that Nathan was shown the beacons to plot 1369, receipts in Nathan’s name showing that he effected payments in respect of plot no 1369, bank transaction documents showing that Nathan was paid money by the plaintiff, an original copy of a letter dated 4/12/2002 showing that the plaintiff was shown beacons to plot number 1608, two original receipts showing that the plaintiff paid the dues required in respect of plot number 1608, and a surveyor’s report dated 18/5/2018.
7. The Surveyors Report shows that the northern part of plot number 1608 has been encroached upon by people claiming to be squatters. It is clear that these are the defendants.
8. There is a demand letter dated 18/5/2018 from the plaintiff’s advocate to the defendants demanding that they vacate the suit land parcels. A copy of a letter from the Chief Milimani was also produced as an exhibit. It shows that the County Surveyor visited the suit land parcels. It requests that three people who were said to be still in occupation of the plaintiffs land be removed or arrested.
9. I have considered the plaintiff’s oral evidence and the documentary evidence that he produced at the hearing of the suit. In my view the plaintiff has established his claim on a balance of probabilities against the defendants. I hereby enter judgment in his favour against the defendants jointly and severally and issue the following orders:
(a) An order for eviction of the defendants, their agents, servants, employees, children, family members and/or any one claiming under them from the plaintiff’s 2. 5 acres or thereabout being plots Nos. 1608 and 1369 Milimani Settlement scheme.
(b) A permanent injunction against the defendants and their agents restraining them from interfering in any manner whatsoever with the plots Nos. 1608 and 1369 Milimani Settlement scheme.
(c) The defendants shall meet the costs of this suit.
Dated, signed and delivered at Kitale on this 25th day of February, 2019.
MWANGI NJOROGE
JUDGE
Dated, signed and delivered at Kitale on this 25thday of February, 2019.
MWANGI NJOROGE
JUDGE
25/2/2019
Coram:
Before - Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Chebii for the plaintiff
N/A for the defendant
COURT
Judgment read in open court.
MWANGI NJOROGE
JUDGE
25/2/2019