[2014] KEHC 2708 (KLR)
The court found that the plaintiff had established his case on a balance of probabilities. The plaintiff was the registered proprietor of the suit land, as evidenced by the title deed. The defendant, having failed to file a defence or appear, did not challenge the plaintiff's evidence. The defendant had previously...
Source-derived case information.
- Citation
- [2014] KEHC 2708 (KLR)
- Parties
- Plaintiff: Joseph Ngari Nthia; Defendant: John Ngari Mucungu
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 675 of 2013
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Judgment for the plaintiff as prayed in the plaint with costs.
- Judges
- BN Olao
- Legal Topics
- Eviction of Trespasser, Registered Proprietor Rights, Land Sale Agreement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ngari Nthia
Plaintiff
John Ngari Mucungu
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to an order of eviction against the defendant from L.R No. MBEERE/MBITA 987.
- 2 Whether the defendant has any legal right to remain on the suit land.
Ratio Decidendi
The court found that the plaintiff had established his case on a balance of probabilities. The plaintiff was the registered proprietor of the suit land, as evidenced by the title deed. The defendant, having failed to file a defence or appear, did not challenge the plaintiff's evidence. The defendant had previously agreed in writing to vacate the land but failed to do so. There was no evidence of any legal right for the defendant to remain on the land. The court held that the plaintiff was entitled to an order of eviction and costs as prayed in the plaint.
Court Disposition
Judgment for the plaintiff as prayed in the plaint with costs.
Orders
- The defendant shall vacate L.R No. MBEERE/MBITA 987 forthwith.
- The plaintiff is awarded costs of the suit.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
ELC CASE NO. 675 OF 2013
JOSEPH NGARI NTHIA …………………………………….……………PLAINTIFF
VERSUS
JOHN NGARI MUCUNGU ………………………………………..…DEFENDANT
JUDGMENT
By his plaint filed herein on 27th August 2009, the plaintiff suing as the registered proprietor of the parcel of land known as L.R No. MBEERE/MBITA 987 (hereinafter the suit land) sought orders to evict the defendant from the said suit land on the basis that he has entered the same and is committing acts of waste thereon and has refused to vacate despite written demand.
Though served with plaint and summons on 3rd September 2009, the plaintiff neither entered appearance nor filed defence and interlocutory judgment was accordingly entered against him on 11th July 2014 and the matter came up for formal proof on 30th July 2014 when the plaintiff testified in support of his claim and called one witness.
The plaintiff’s case is that he bought the suit land on 19th August 2007 for Ksh. 227. 500/= from ELIZAPHAN NYAGA KARANJA (PW2) and following the usual Land Control Board Consent, the suit land was transferred to him. He produced the sale agreement (Exhibit 1) and the Title deed (Exhibit 2). When he bought the land, the defendant was living on it but agreed to vacate. However, to-date, the defendant has failed to vacate notwithstanding a notice issued to him (Exhibit 3) and even having agreed to do so in an agreement that he signed before the Assistant Chief (Exhibit 4). That gave rise to this suit.
The plaintiff’s witness ELIZAPHAN KARANJA (PW2) confirmed that indeed he sold the suit land to plaintiff in 2007 and that the defendant who was then cultivating on it agreed that he would vacate later.
As indicated earlier, the defendant did not enter appearance nor file any defence and so the evidence of the plaintiff and his witness is un-controverted.From that evidence, it is not in dispute that the plaintiff is the registered proprietor of the suit land as demonstrated by the title deed (Exhibit 2) issued under the now repealed Registered Land Act. As the registered proprietor, the plaintiff enjoys the right and privileges that go with such registration including the right to eject trespassers. There is no evidence to suggest that the defendant has any right recognized in law to continue being on the suit land. If anything, there is an agreement (Exhibit 5) signed by the defendant on 28th July 2008 at the office of the Assistant Chief Gikiiro Sub-location in which he undertook to vacate the suit land by 29th November 2008. Clearly, he has failed to keep that part of the agreement.
Believing that plaintiff’s un-controverted evidence as I hereby do, I have no hesitation in finding that he has established his case as required in law.
I therefore enter judgment for the plaintiff as prayed in his plaint together with costs.
B.N. OLAO
JUDGE
25TH SEPTEMBER, 2014
25/9/2014
Before
B.N. Olao – Judge
Mwangi – CC
Plaintiff - present
Defendant – absent
COURT: Judgment delivered this 25th day of September, 2014 in open Court.
Plaintiff present
Defendant absent.
Right of appeal explained.
B.N. OLAO
JUDGE
25TH SEPTEMBER, 2014