[2018] KEELC 4369 (KLR)
The court found that the Plaintiff is the registered proprietor of the suit land, Mitamboni/Mbee/1681, and there was no evidence presented to suggest that the Title Deed was obtained fraudulently or by mistake. The Defendants, having failed to enter appearance or file a defence, did not challenge the Plaintiff's...
Source-derived case information.
- Citation
- [2018] KEELC 4369 (KLR)
- Parties
- Plaintiff: John Mutisya Kioko; Defendant: Samuel Wambua Nyungu; Defendant: John Mwinzi Nyungu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 242 of 2017
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Plaint allowed as prayed.
- Judges
- OA Angote
- Legal Topics
- Land Ownership, Trespass, Injunctions, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mutisya Kioko
Plaintiff
Samuel Wambua Nyungu
Defendant
John Mwinzi Nyungu
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the Plaintiff is the lawful and legal owner of parcel Mitamboni/Mbee/1681.
- 2 Whether the Defendants have illegally encroached on the Plaintiff's land.
- 3 Whether the Plaintiff is entitled to a permanent injunction and eviction orders against the Defendants.
Ratio Decidendi
The court found that the Plaintiff is the registered proprietor of the suit land, Mitamboni/Mbee/1681, and there was no evidence presented to suggest that the Title Deed was obtained fraudulently or by mistake. The Defendants, having failed to enter appearance or file a defence, did not challenge the Plaintiff's ownership or provide any justification for their occupation of the land. On a balance of probabilities, the Plaintiff proved his case and was entitled to the reliefs sought, including a permanent injunction and eviction of the Defendants from the suit land.
Court Disposition
Plaint allowed as prayed.
Orders
- A permanent injunction is issued restraining the Defendants from interfering with parcel Mitamboni/Mbee/1681.
- The Defendants are ordered to vacate and be evicted from parcel Mitamboni/Mbee/1681.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 242 OF 2017
JOHN MUTISYA KIOKO...............................PLAINTIFF
VERSUS
SAMUEL WAMBUA NYUNGU...........1ST DEFENDANT
JOHN MWINZI NYUNGU..................2ND DEFENDANT
JUDGMENT
1. In the Plaint dated 16th May, 2017, the Plaintiff averred that at all material times, the Plaintiff was the lawful and legal owner of parcel of land known as Mitamboni/Mbee/1681 measuring 0. 11Ha (the suit land); that he bought the said land from Amos Muli Nyungu and that the Defendants have now illegally encroached on the said land.
2. The Plaintiff is seeking for a permanent injunction restraining the Defendants from interfering with the suit land and for an order of eviction of the Defendants. The Plaintiff is also seeking for an order of general damages for trespass.
3. Although the Defendants were served with the Summons to Enter Appearance and the Plaint, they neither entered appearance nor filed a Defence.
4. The matter proceeded for hearing on 16th October, 2017.
5. The Plaintiff, PW1, informed the court that he bought the land from Amos Muli Nyungu and that the land was transferred to him. The Plaintiff produced the copies of the Sale Agreements that he entered into with the said Amos Nyungu and the Title Deed that was issued to him on 3rd November, 2014.
6. In view of the fact that the Plaintiff is the registered proprietor of the suit land, and in the absence of evidence to show that he procured the said Title Deed fraudulently or by mistake, I find that the Plaintiff has proved his case on a balance of probabilities.
7. I therefore allow the Plaint dated 16th May, 2017 as prayed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 2ND DAY OF MARCH, 2018.
O.A. ANGOTE
JUDGE