[2018] KEELC 4670 (KLR)
The court found that the plaintiff had proved ownership of the suit land by producing the title deed and evidence of registration. The defendants, having previously leased the land and subsequently refusing to vacate after the lease ended and after repeated demands, were in unlawful occupation. The court noted that...
Source-derived case information.
- Citation
- [2018] KEELC 4670 (KLR)
- Parties
- Plaintiff: Juma Asborn Kwanusu Watiba Were; Defendant: Simon Kimaru Birgen; Defendant: Abraham Sambu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 99 of 2017
- Procedural Posture
- Land Case / Judgment
- Outcome
- Judgment for the plaintiff; eviction order granted against the defendants; costs awarded to the plaintiff.
- Judges
- FM Njoroge
- Legal Topics
- Eviction, Trespass, Title to Land, Possession, Boundary Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Juma Asborn Kwanusu Watiba Were
Plaintiff
Simon Kimaru Birgen
Defendant
Abraham Sambu
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the plaintiff is the registered absolute proprietor of the suit land and entitled to possession thereof.
- 2 Whether the defendants have unlawfully trespassed and occupied the plaintiff's land without justification.
- 3 Whether the plaintiff is entitled to an order of eviction against the defendants.
Ratio Decidendi
The court found that the plaintiff had proved ownership of the suit land by producing the title deed and evidence of registration. The defendants, having previously leased the land and subsequently refusing to vacate after the lease ended and after repeated demands, were in unlawful occupation. The court noted that the defendants failed to file any defence or appear in court to contest the claim. The plaintiff's evidence was uncontroverted, and the court was satisfied that the plaintiff was entitled to an order of eviction and costs as prayed in the plaint. The claim for mesne profits was not proved or specifically pleaded and was therefore not granted.
Court Disposition
Judgment for the plaintiff; eviction order granted against the defendants; costs awarded to the plaintiff.
Orders
- An order of eviction is issued against the defendants jointly and severally and their agents or any other person claiming through them from Land Title No. Moi’s Bridge Ziwa Block 17 (Chekata Sikaoni)/245 and the plaintiff is placed in possession thereof.
- The defendants shall pay the costs of the suit to the plaintiff.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT
AT KITALE
LAND CASE NO. 99 OF 2017
JUMA ASBORN KWANUSU WATIBA WERE..............PLAINTIFF
VERSUS
SIMON KIMARU BIRGEN....................................1ST DEFENDANT
ABRAHAM SAMBU.............................................2ND DEFENDANT
J U D G M E N T
1. In the plaint dated 23/5/2017 filed in this suit on 29/5/2017 the plaintiff seeks the following prayers:-
(1) That an order of eviction do issue against the defendants jointly and severally and their agents or any other person claiming through them from the whole of that land known as Land Title No. Moi’s Bridge Ziwa Block 17 (Chekata Sikaoni)/245measuring approximatelynought decimal five five six nought (0. 5560) Hectares or thereabouts and the plaintiff be placed in possession thereof.
(2) Costs of the suit.
(3) Any other relief that the court may deem just and fit to grant.
2. The affidavit of Jackson Nyongesa Simiyu a court process server dated 6/7/2017 was filed on 6/7/2017. It shows that service of the summons to enter appearance plaint and other documents in the suit was effected upon the 1st and 2nd defendants on 14/6/2017. Despite that the defendants never filed any memorandum of appearance or defence. They never appeared at the hearing when this case was listed for formal proof. The plaintiff alone testified in the suit.
3. According to the plaint and the plaintiff’s evidence the plaintiff is the registered absolute proprietor of the suit land, having been issued with a title deed on 16/7/1997. The plaintiff avers that his land neighbours that of the defendants who have without any justifiable cause trespassed upon the plaintiff’s land and who are now claiming ownership of the same. The plaintiff avers that the defendants have denied him access to his said land and that despite demand they have refused to give vacant possession thereof, hence this suit.
4. The plaintiff adopted the statement that he filed in this suit on 29/5/2017 as his evidence-in-chief. The plaintiff also produced the original title to the suit land in evidence. He avers that the defendants unlawfully entered the suit land in the year 2013. Before then, the defendants and their now deceased father are said to have leased the suit land from the plaintiff. They used to pay rent in the sum of Kshs. 8000/= per year and they did so until 2011 when they failed to pay rent as required and said they wanted to purchase the suit land. However, by the year 2014, they had not paid for the land and the plaintiff asked them to vacate the land.
5. The plaintiff produced evidence that he had engaged the defendants requiring them to vacate the suit land and that he had even approached the local Chief who wrote letters dated 1/9/2016 and 9/9/2016 to the defendants.
6. Upon their refusal to vacate the land or attend at the Chief’s office the matter was escalated to the Assistant County Commissioner's office and the latter wrote to the defendants a letter dated 14/12/2016. The defendants agreed to come to a meeting at the County Commissioner’s office where after hearing the parties the County Commissioner directed that the suit land belonged to the plaintiff and that the defendants should vacate the said land. However, the defendants never vacated the suit land.
7. The County Surveyor came to the site and reinstated the boundary that the defendants had destroyed. The Surveyor’s letter dated 20/12/2016 was produced as P. Exhibit 8. The defendants responded by having their Lawyer write a letter dated 13/1/2017. Despite a further letter from the plaintiff’s advocate dated 25/1/2017 requiring the defendants to vacate, they stayed on the land hence this suit.
8. I have examined at the evidence of the plaintiff in this matter. I am satisfied that he has proved his claim regarding ownership of the land and eviction of the defendants from the suit land. However he has not proved any claim for mesne profits as submitted and none are claimed in the plaint dated 23/5/2017.
9. I therefore find that the plaintiff’s claim for eviction against the two defendants’ has merit and I enter judgment in favour of the plaintiff against the two defendants jointly and severally in terms of the first and second prayers of the plaint dated 23/5/2017.
Dated, signed and delivered at Kitale on this 25th day of January, 2018.
MWANGI NJOROGE
JUDGE
25/01/2018
Coram - Before Mwangi Njoroge Judge
Court Assistant - Isabellah
COURT
Judgment delivered in open court in the presence of Mr. Bisonga the plaintiff and in the absence of the defendant
MWANGI NJOROGE
JUDGE
25/01/2018