[2008] KEHC 3153 (KLR)
The court found that the plaintiff had proved his case by producing the title deed and allotment letter, establishing him as the registered proprietor of the suit land. The defendant, having failed to enter appearance or file a defence, did not challenge the plaintiff's evidence. The court held that the defendant...
Source-derived case information.
- Citation
- [2008] KEHC 3153 (KLR)
- Parties
- Plaintiff: Johnson Mose Nyangau; Defendant: David Onchoke
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 167 of 2006
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaintiff's claim for eviction granted; claim for mesne profits dismissed; costs awarded to plaintiff.
- Legal Topics
- Trespass to Land, Registered Proprietorship, Eviction Orders, Mesne Profits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnson Mose Nyangau
Plaintiff
David Onchoke
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff is the registered proprietor of the suit land and entitled to exclusive possession.
- 2 Whether the defendant unlawfully trespassed and occupied the suit land.
- 3 Whether the plaintiff is entitled to an eviction order against the defendant and persons claiming under him.
Ratio Decidendi
The court found that the plaintiff had proved his case by producing the title deed and allotment letter, establishing him as the registered proprietor of the suit land. The defendant, having failed to enter appearance or file a defence, did not challenge the plaintiff's evidence. The court held that the defendant had no right to occupy the suit land and ordered him to vacate within thirty days, failing which he would be forcefully evicted. The court declined to make orders against other persons in occupation who were not parties to the suit, emphasizing the need for due process. The plaintiff's claim for mesne profits was dismissed for lack of evidence. Costs were awarded to the plaintiff.
Court Disposition
Plaintiff's claim for eviction granted; claim for mesne profits dismissed; costs awarded to plaintiff.
Orders
- The defendant shall vacate the suit land within thirty days from the date of judgment, failing which he shall be forcefully evicted.
- The plaintiff's claim for mesne profits is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII
Civil Case 167 of 2006
JOHNSON MOSE NYANGAU ……………...……………..……… PLAINTIFF
VERSUS
DAVID ONCHOKE …………………………………………..….. DEFENDANT
JUDGMENT
The plaintiff filed a suit against the defendant and alleged that he was the registered proprietor of land parcel number Nyansiongo Settlement Scheme/105 (hereinafter referred to as “the suit land”).He claimed that the defendant had forcefully trespassed to the suit land. The defendant had even purported to sell parts of the suit land to some third parties. The plaintiff prayed for eviction order against the defendant and any other person who may be claiming any right of ownership under him. He also prayed for mesne profits.
The defendant was served with summons to enter appearance together with the plaint but he failed to enter appearance or file any defence.
The plaintiff testified that the defendant was his own brother and he produced the title deed for the suit land as an exhibit, P.Exh.1. He purchased the land from the Settlement Fund Trustees. He produced the allotment letter dated 28th December, 1978 as P.Exh.2. He added that in 1984 there was a case between him and the defendant, HCCC NO.259 of 1984 at Kisii, wherein the defendant was ordered to vacate the suit land. The defendant moved out but left some people in occupation of the land. It appears that later on the defendant returned to the suit land. The plaintiff said that since 1984 he had not been able to use his land and he prayed for mesne profits. However, he tendered no evidence in proof of his claim for mesne profits.
From the evidence on record, the plaintiff is the registered proprietor of the suit land. He proved that by production of his title deed. In the absence of any evidence from the defendant, having failed to defend this suit, I find that the defendant has no right to occupy the suit land and hereby order him to vacate the same within the next thirty days from the date hereof, failing which he shall be forcefully evicted.
As regards the other people who are in occupation of the land, the plaintiff should have sued them together with the defendant, particularly so if they are alleging that they purchased portions of the suit land from the defendant. It would not be right to make an order against them before granting them an opportunity to be heard.
The plaintiff did not prove his claim for mesne profits and I dismiss that claim. The defendant shall bear the costs of this suit.
DATED, SIGNED and DELIVEREDat KISII this 16th day of May, 2008.
D. MUSINGA
JUDGE.
Delivered in open court in the presence of:
________________ for Plaintiff
________________ for Defendant.
D. MUSINGA
JUDGE