[2015] KEHC 6665 (KLR)
The court found that the plaintiff had established ownership of the suit land through production of a title deed and search certificate. The defendant, having failed to appear or defend the suit, was deemed to have admitted the plaintiff's claim. The evidence showed that the defendant entered the land without...
Source-derived case information.
- Citation
- [2015] KEHC 6665 (KLR)
- Parties
- Plaintiff: John Odera Odera; Defendant: James Oyatta Okello
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 102 of 2012
- Procedural Posture
- Land and Property Suit / Final Judgment
- Outcome
- Plaintiff's suit allowed in part; declaration of ownership, permanent injunction, eviction with 90-day notice, and costs granted; claim for general damages dismissed.
- Legal Topics
- Trespass to Land, Eviction, Injunctive Relief, Title Ownership
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Odera Odera
Plaintiff
James Oyatta Okello
Defendant
Procedural Posture
Land and Property Suit / Final Judgment
Legal Issues
- 1 Whether the plaintiff is the lawful owner of Land Parcel No. NORTH SAKWA/MARANDA/1905.
- 2 Whether the defendant is a trespasser and in illegal occupation of the suit land.
- 3 Whether the plaintiff is entitled to orders of eviction, permanent injunction, and costs.
Ratio Decidendi
The court found that the plaintiff had established ownership of the suit land through production of a title deed and search certificate. The defendant, having failed to appear or defend the suit, was deemed to have admitted the plaintiff's claim. The evidence showed that the defendant entered the land without consent, constructed structures, and engaged in activities inconsistent with the plaintiff's rights as owner. The court held that the plaintiff was entitled to a declaration of ownership, a permanent injunction restraining the defendant from remaining on the land, and an order of eviction, subject to a 90-day notice. The claim for general damages was denied due to lack of evidence....
Court Disposition
Plaintiff's suit allowed in part; declaration of ownership, permanent injunction, eviction with 90-day notice, and costs granted; claim for general damages dismissed.
Orders
- Declaration that the plaintiff is entitled to exclusive and unimpeded right of possession and occupation of Land Parcel No. NORTH SAKWA/MARANDA/1905.
- Permanent injunction restraining the defendant from remaining or continuing in occupation of the suit land.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
ENVIRONMENT AND LAND CASE NO.102 OF 2012
JOHN ODERA ODERA.......................................PLAINTIFF
VERSUS
JAMES OYATTA OKELLO.............................DEFENDANT
FINAL JUDGMENT
By a plaint filed here on 20/11/2012 the plaintiff – JOHN ODERA ODERA– is seeking various prayers against the defendant – JAMES OYATTA OKELLO – who is said to be a trespasser and illegal occupier of Land Parcel No.NORTH SAKWA/MARANDA/1905 (which is suit land hereafter).
According to the plaint, the trespass and illegal occupation took place in or about 2010 and the defendant has subsequently misused, damaged, wasted and destroyed the suit land. He has, by so doing, deprived the plaintiff of use and enjoyment of the property.
The orders sought are as follows:-
(a) A declaration that the plaintiff is entitled to exclusive and unimpeded right of possession and occupation of the suit land and that the defendant whether by himself or his servants or agents or otherwise however are wrongly in occupation andare therefore trespassers.
(b) A permanent injunction restraining the defendant whether by himself or his servants or agents or otherwise howsoever from remaining or continuing in occupation of the suit land.
( c) An order of eviction of the defendant from the suit land and demolition of all the structures constructed thereonby the defendant.
General damages for trespass
(e) Costs of the suit together with interests.
(f) Any further appropriate relief.
It appears clear that the defendant was served. There is an affidavit of service to that effect filed here on 7/2/2013 and dated 23/1/2013. Inspite of that however, the defendant didn't enter appearance and/or file defence. As a result, judgment was requested for and the same was entered on 24/7/2013.
The matter then came for formal proof on 17/9/2014, when the plaintiff testified as P.W.1. He said the defendant entered his land sometimes in 1999 and put up a house there. He reported the defendant to the area local administration and, after deliberations, the defendant was ordered to leave the land. He has been there burning charcoal, grazing his animals and cutting down trees.
In the course of hearing, the plaintiff availed the following exhibits:
(a) His title deed (Plf EX.No.1)
(b) A copy of search certificate showing the land as his (Plf EX No. 2)
(c) Demand letter written to the defendant (Plf EX No.3)
(d) Reply by the defendant to the demand letter Plf EX No.4
The plaintiff has demonstrated well that the suit land belongs to him. He availed the title deed and a search certificate to confirm ownership. The defendant mounted no challenge.
The proceedings before the court bring out the defendant as a trespasser and illegal occupier. The plaintiff has proved his case on balance. He is therefore granted prayers (a) (b) and (c). Prayer (c) which is for eviction requires to be executed with caution. The plaintiff should give the defendant a Notice of 90 days to quit failing which he can carry out the eviction. The plaintiff also gets prayer (e) which is for costs and interests. Prayer (d) which is for damages is not granted. No evidence was led on that.
The prayers granted so far are deemed adequate and prayer (f) is therefore not up for consideration.
A.K. KANIARU – JUDGE
29/1/2015