[2015] KEHC 1699 (KLR)
The court found that the plaintiff had produced a valid title deed and evidence of full payment for the suit land, supported by credible witnesses, establishing him as the absolute registered owner of parcel Ndivisi/Ndivisi/1725. The 1st defendant, despite being served, failed to appear or adduce any evidence to...
Source-derived case information.
- Citation
- [2015] KEHC 1699 (KLR)
- Parties
- Plaintiff: Joseph Masinde Busuru; Defendant: Playton Leonard Wekesa; Defendant: Paul Kituyi Ngosia
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 164 of 2013
- Procedural Posture
- Land Case / Judgment
- Outcome
- Plaintiff's suit allowed with costs, except for mesne profits.
- Judges
- SN Mukunya
- Legal Topics
- Trespass to Land, Ownership Dispute, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Masinde Busuru
Plaintiff
Playton Leonard Wekesa
Defendant
Paul Kituyi Ngosia
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the 1st defendant unlawfully trespassed on land parcel Ndivisi/Ndivisi/1725.
- 2 Whether the plaintiff is the absolute registered owner of the suit land.
- 3 Whether the plaintiff is entitled to a permanent injunction and removal of caution on the land.
Ratio Decidendi
The court found that the plaintiff had produced a valid title deed and evidence of full payment for the suit land, supported by credible witnesses, establishing him as the absolute registered owner of parcel Ndivisi/Ndivisi/1725. The 1st defendant, despite being served, failed to appear or adduce any evidence to support his claim of purchase or adverse possession. The court held that the plaintiff had proved his case on the required standard and was entitled to the reliefs sought, except for mesne profits, which were not proved. The court granted a permanent injunction restraining the defendants from trespassing, ordered removal of the caution, and declared the plaintiff the absolute...
Court Disposition
Plaintiff's suit allowed with costs, except for mesne profits.
Orders
- A permanent injunction restraining the defendants from trespassing, tilling, ploughing, or remaining on parcel Ndivisi/Ndivisi/1725.
- Removal and/or cancellation of the caution lodged on the said land by the defendants.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
LAND AND ENVIRONMENT CASE NO. 164 OF 2013
[Formerly Bungoma cmcc no. 898 of 2011]
JOSEPH MASINDE BUSURU …………………..PLAINTIFF
VERSUS
PLAYTON LEONARD WEKESA .……… 1ST DEFENDANT
PAUL KITUYI NGOSIA ………………….. 2ND DEFENDANT
JUDGMENT
[1].The plaintiff filed this suit against the defendant and alleged that the 1st defendant unlawfully and without colour of right trespassed on land parcel no. Ndivisi/Ndivisi/1725 and planted sugar cane and maize thereon without the consent and/or authority of the plaintiff. That the 1st defendant has denied the plaintiff access of his land and that the plaintiff has suffered loss. The plaintiff therefore sued for a permanent injunction restraining the defendant whether by himself, his agents, servants and/or relatives from tilling, ploughing, trespassing or attempting to trespass and remaining on the aforementioned parcel of land and he prays for removal and/or cancellation of the caution lodged on the said land and declaring the plaintiff as the absolute registered owner of the suit land Ndivisi/Ndivisi/1725.
[2].The defendants filed a joint defence. The 1st defendant contends in his defence that he utilizes the suit land. That he purchased the same from Lawrence Simiyu Nandasaba, Judith Wafula Simiyu and Mershack Nandasaba. The defendant further avers that he bought the suit land in 1994 and has resided on the suit land and has thus acquired proprietary rights under adverse provision.
[3]. When this case came up for hearing the plaintiff appeared but the defendant did not appear. He was served with the hearing notice on 18. 5.2015. The plaintiff Mr. Joseph Masinde Busulu gave evidence and he said he sued the defendant as the one who took his land and prevented him from working on his land Ndivisi/Ndivisi/1725. He said he has a title and was issued on 12. 2.2009. He said he paid the entire purchase price. He said the land was a subdivision of land parcel Ndivisi/Ndivisi/220. He produced green card of the same. The plaintiff said that he was aware of civil case no. 26 of 2010 in which the 1st defendant has sued one Lawrence Simiyu Nandasaba for a refund of kshs. 70,000/= purchase price. He produced the pleadings of that case as plaintiff exhibit 8. He prayed for the orders prayed in his plaint and for a removal of the caution imposed on his land by the defendants. He asked for the costs and mesre profits from 2009 to now.
[4]. The plaintiff called his witness Margaret Nandasaba who said that she was a witness of the sale agreement between the plaintiff and the seller who was her husband. She told the court that the plaintiff paid all the money and was given the title. However she said that the land now is being used by the 1st defendant. She averred that the land was never sold to the 1st defendant.
[5]. The 2nd witness wasMr. Lawrence Simiyu Nandasaba who said that he was also a witness in the agreement on 14. 1.2009. he said that his father sold one (1) acre to the plaintiff for Kshs. 190,000/=. He said that he knew of a case at Webuye where he has been sued for Kshs. 80,000/- by the defendant. That, that case was about purchase price of parcel Ndivisi/Ndivisi/1725 where the 1st defendant herein needs refund. That the case is still pending at Webuye. He stated that the land is being used by the 1st defendant who is now preparing to plant sugar cane. He said that the land Ndivisi/Ndivisi/1725 belongs to the plaintiff.
[6]. After the close of the plaintiffs case the defendant who was not present and who was aware of the hearing date offered no evidence. The counsel for the defendant prayed that the case for the defendant be deemed as closed. And it was so closed and the suit was set down for judgment today.
[7]. Having heard the evidence of the plaintiff and the witnesses and there being no contrary evidence from the defendant I am convinced that the plaintiff has proved his case on the required standards and I allow the prayers in the suit. Other than the prayers of mesne profit since none was proved before me. The plaintiff shall have the costs of the suit.
DATED at BUNGOMA this 28th day of October 2015.
S. MUKUNYA
JUDGE