[2018] KEELC 4328 (KLR)
The court found that although the plaintiff produced a title deed for the suit property, his own pleadings (specifically paragraph 5 of the plaint) indicated that the property was registered in the defendant's name. No application was made to amend this pleading. Since parties are bound by their pleadings and the...
Source-derived case information.
- Citation
- [2018] KEELC 4328 (KLR)
- Parties
- Plaintiff: Joseph Mwania Nziu; Defendant: Kyalo Ngumbi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 328 of 2017
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- plaint dismissed
- Legal Topics
- Trespass, Permanent Injunction, Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mwania Nziu
Plaintiff
Kyalo Ngumbi
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is the lawful owner of land parcel Kalawa/Kathulumbi/387.
- 2 Whether the defendant has trespassed on the plaintiff's land.
- 3 Whether the plaintiff is entitled to a permanent injunction against the defendant.
Ratio Decidendi
The court found that although the plaintiff produced a title deed for the suit property, his own pleadings (specifically paragraph 5 of the plaint) indicated that the property was registered in the defendant's name. No application was made to amend this pleading. Since parties are bound by their pleadings and the evidence did not support the plaintiff's averments, the court held that the plaintiff failed to prove his case on a balance of probabilities. Consequently, the plaintiff was not entitled to the orders sought, and the suit was dismissed.
Court Disposition
plaint dismissed
Orders
- The plaint is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC CASE NO 328 OF 2017
JOSEPH MWANIA NZIU...........................................PLAINTIFF
VERSUS
KYALO NGUMBI ....................................................DEFENDANT
JUDGMENT
1. The plaintiff herein is a farmer from Kalawa. He owns land parcel number Kalawa/Kathulumbi/387 which he accuses the defendant having trespassed into.
2. By his plaint dated 31st July, 2017 and filed In court on the 22nd August, 2017 the plaintiff prays for judgement against the defendant for:-
1. An order of permanent injunction restraining the defendant himself or his servants from trespassing and carrying on illegal activities on parcel No. Kalawa/Kithulumbi/387 belonging to the plaintiff.
2. Costs of the suit.
3. On 23rd August, 2017 the defendant was served with summons to enter appearance and to file his defence. His failure to do so resulted in this court directing on the 16th November, 2017 that matter do proceed as undefended suit.
4. During the hearing of the suit, the plaintiff produced title deed for Kalawa/Kathulumbi/387 as PEx no.1. He said that the defendant has built on his land and that he hired a surveyor who showed him the boundary. He added that the defendant later uprooted the markings that the plaintiff had erected on the boundary.
5. The plaintiff prayed for judgment against the defendants.
6. In his written submissions filed in court on 20th December, 2017, Mr. Tamata for the plaintiff urged the court to permanently restrain the defendant and his agents from trespassing into the plaintiff’s land parcel number Kalawa/Kithulumbi/387.
7. Having read the evidence on record, I do note that whereas the plaintiff says that land parcel number Kalawa/Kithulumbi/387 is his property and went ahead to produce title deed for the suit property as PEx no. 1, paragraph 5 of his plaint shows that the suit property is registered in the defendant’s name. Parties are bound by the pleadings. The evidence on record therefore does not support the averments in paragraph 5 of the plaint. No application was ever made to amend the said paragraph 5 of the plaint. In the circumstances, the defendant cannot be restrained from carrying out activities in land parcel number Kalawa/Kithulumbi/387 which the plaintiff has averred that it to belongs to him. As such, the plaintiff has failed to prove to the court that on a balance of probabilities, he has a cause of action against the defendant. His claim must therefore fail with no orders as to costs. In the circumstances, I dismiss the plaint.
Signed, dated and delivered at Makueni on 21st day of February, 2018
MBOGO CG
JUDGE
In the presence of;
Mr. Kwemboi Court Assistant
Mr. Tamata for the plaintiff
MBOGO C.G
JUDGE
21/2/2018