[2018] KEELC 23 (KLR)
The court found that the Plaintiff and his siblings are the rightful beneficiaries of plot number Kinyambu/2481, as established by the family settlement and registration of the land in the name of the Plaintiff’s mother. The Defendant and his mother were settled on a different parcel, Kinyambu/2468. The Defendant’s...
Source-derived case information.
- Citation
- [2018] KEELC 23 (KLR)
- Parties
- Plaintiff: Julius Wathome Kyule; Defendant: Joseph Kimathi Kyule
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 47 of 2017
- Procedural Posture
- Land Dispute / Judgment
- Outcome
- Judgment for the Plaintiff.
- Legal Topics
- Land Ownership, Compensation Awards, Family Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Wathome Kyule
Plaintiff
Joseph Kimathi Kyule
Defendant
Procedural Posture
Land Dispute / Judgment
Legal Issues
- 1 Whether the Defendant is entitled to the Standard Gauge Railways compensation award for plot number Kinyambu/2481.
- 2 Whether the award should be paid exclusively to the Plaintiff and his siblings.
- 3 Whether the Defendant unlawfully tampered with land records to claim the award.
Ratio Decidendi
The court found that the Plaintiff and his siblings are the rightful beneficiaries of plot number Kinyambu/2481, as established by the family settlement and registration of the land in the name of the Plaintiff’s mother. The Defendant and his mother were settled on a different parcel, Kinyambu/2468. The Defendant’s act of adding his and his mother’s names to the records of Kinyambu/2481 was found to be improper and the Defendant failed to contest the Plaintiff’s evidence or participate in the proceedings. The court held that the Defendant is not entitled to the Standard Gauge Railways compensation award for plot number Kinyambu/2481 and that the award should be paid to the Plaintiff’s...
Court Disposition
Judgment for the Plaintiff.
Orders
- A declaration that the Defendant is not entitled to the Standard Gauge Railways award to plot number Kinyambu/2481.
- The award to be paid to Julius Wathome Kyule’s account Number 1144054680 Kenya Commercial Bank Kibwezi.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC 47 OF 2017
JULIUS WATHOME KYULE.............PLAINTIFF
VERSUS
JOSEPH KIMATHI KYULE...........DEFENDANT
JUDGMENT
1) This suit commenced by way of a plaint dated 24/3/2017 and filed in court on the 31st March, 2017. The Plaintiff and the Defendant are step brothers. The Plaintiff has averred in paragraphs 3 and 4 of his plaint that he and his siblings reside in plot number Kinyambu/2481 while the Defendant and his siblings reside in plot number Kinyambu 2468. That the Defendant laid claim on Standard Gauge Railways award meant exclusively for the Plaintiff and his siblings.
2) In his plaint, the Plaintiff prays for judgment against the Defendant;
a) A declaration that the Defendant is not entitled to Standard Gauge Railways award to plot number Kinyambu/2481.
b) That the award be paid to Julius Wathome Kyule’s account Number 1144054680 Kenya Commercial Bank Kibwezi.
c) The Defendant to pay the costs of this suit with interest at court rates.
d) Any other relief the honourable court will deem fit and expedient to grant.
3) The matter proceeded as undefended suit after the Defendant who had been served with summons to enter appearance and to file his Defence failed to do so. During the hearing, the Plaintiff adopted his statement that he recorded on 23rd March, 2016 as his evidence. He also produced his list of documents dated 24th March, 2017 as PEX No. 1 to 5 respectively.
4) The Plaintiff’s evidence is that he is the first born in a family of 13 children. That his father settled his first wife who is also his mother in land parcel number Kinyambu/2481. That when he married his second wife who is also the mother of the Defendant herein, he settled her briefly in the aforementioned parcel of land before moving her to land parcel Kinyambu/2468.
5) That the two parcels of land were registered in the names of his father’s two wives. That during the construction of Standard Gauge Railways their family land fell in the path of the railway line and automatically, the family had to be compensated for the lost land. That the Defendant tampered with the land records by adding his name and that of his mother so that the record now reads “Meki Ngilu Kyule Kasuni and Joseph Kimanthi Kyule” instead of “ Meki Ngilu Kyule Kasuni.” The Plaintiff added that as a result of the confusion, they are yet to be paid. He pointed out that they have tried to resolve the dispute through the chief and the elders but the Defendant has been adamant.
6) The Plaintiff’s counsel in his submissions urged the court to rule in favour of the Plaintiff. Having read the evidence on record as well as the submissions filed, I am satisfied that he Plaintiff has a cause of action against the Defendant. In the circumstance, I hereby proceed to enter judgement for him and against the Defendant in terms of prayer (a), (b) and (c) of the Plaint.
SIGNED, DATED and DELIVEREDat MAKUENI this 3RD day of DECEMBER, 2018
MBOGO C.G,
JUDGE
IN THE PRESENCE OF;
Mr. Kilonzo holding brief for Mr. Mochere for the Plaintiff present
Kwemboi Court Assistant
MBOGO C.G, JUDGE
3/12/2018