[2014] KEELC 299 (KLR)
The court found that the plaintiff had proved, on a balance of probabilities, that his late father purchased the suit property from the defendant through a valid sale agreement. The defendant, having been served but failing to file a defence or contest the evidence, left the plaintiff's case unchallenged. The court...
Source-derived case information.
- Citation
- [2014] KEELC 299 (KLR)
- Parties
- Plaintiff: Joseph Tommy Nguma (the administrator of the Estate of Thomas Nguma Gona); Defendant: Benson Ngala Chome
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 40 of 2012
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaintiff's claim allowed; permanent injunction granted against the defendant.
- Judges
- OA Angote
- Legal Topics
- Land Sale Agreements, Trespass, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Tommy Nguma (the administrator of the Estate of Thomas Nguma Gona)
Plaintiff
Benson Ngala Chome
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to a permanent injunction restraining the defendant from trespassing on the suit property.
- 2 Whether the plaintiff has proved ownership of the suit property by virtue of a sale agreement.
Ratio Decidendi
The court found that the plaintiff had proved, on a balance of probabilities, that his late father purchased the suit property from the defendant through a valid sale agreement. The defendant, having been served but failing to file a defence or contest the evidence, left the plaintiff's case unchallenged. The court accepted the sale agreement and supporting documents as sufficient proof of ownership and found that the defendant's continued occupation and cultivation of the land constituted trespass. Accordingly, the court granted the plaintiff's claim for a permanent injunction restraining the defendant from entering or trespassing on the suit property.
Court Disposition
Plaintiff's claim allowed; permanent injunction granted against the defendant.
Orders
- A permanent injunction is issued restraining the defendant from trespassing and entering on parcel number 549/Kikombe.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
CIVIL CASE NO. 40 OF 2012
JOSEPH TOMMY NGUMA (the administrator of the Estate of THOMAS NGUMA GONA)..................................................................PLAINTIF
=VERSUS=
BENSON NGALA CHOME.................................................................DEFENDANT
JUDGMENT
Introduction:
The Plaintiff filed a Plaint dated 25th October, 2013 claiming that the Defendant has denied the Plaintiff to access his land being parcel number 549/kikombe.
According to the Plaintiff, the Defendant sold to him the suit property and initially gave him vacant possession. However, in the year 2011, the Defendant developed a habit of trespassing and entering the suit property and cultivating thereon.
The Plaintiff is claiming for a permanent injunction order restraining the Defendant from trespassing and entering on the suit property.
The Defendant did not file a defence although he was duly served with Summons to Enter Appearance and the Plaint. The matter proceeded in the absence of the Defendant.
The Plaintiff's case:
According to the evidence of the Plaintiff, Pw1, his late father bought the suit property from the Defendant on 7th November 2004.
Pw1 produced in evidence the sale agreement between his late father and the Defendant as PEXB1. Pw 1 also produced as PEXB2 the limited letters of administration.
When the Plaintiff's father died on 19th October, 2010, it is the Plaintiff's case that the Defendant encroached on the suit property and started cultivating it. It was the Plaintiff's evidence that the Defendant has continued to occupy the suit property until now.
Pw2, the Plaintiff's neighbour, informed the court that he is aware that the Defendant sold the suit property to the Plaintiff's father.
According to Pw2, the agreement between the Plaintiff's and the Defendant was actualised in his house and he witnessed the signatures of the two.
Analysis and findings:
The Plaintiff's claim has not been opposed by the Defendant. The Plaintiff produced as exhibit 1 the sale agreement showing that indeed his late father purchased the suit property from the Defendant. The Defendant was paid the purchase price in installments.
The sale agreement that the parties entered into was produced in court as an exhibit. The said evidence has not been rebutted by the Defendant.
Consequently, I find that the Plaintiff has proved his case on a balance of probabilities. I therefore allow the Plaintiff's Plaint dated 25th October, 2013 as drawn.
Dated and delivered in Malindi this20thday of June,2014
O. A. Angote
Judge