[2017] KEELC 2622 (KLR)
The Plaintiffs produced a valid Title Deed and official search showing they are the registered proprietors of Nzaui/Kalamba/55. The Defendants, having failed to appear or contest the suit, provided no evidence to challenge the Plaintiffs' title or to suggest fraud or mistake in its issuance. Section 26(1) of the...
Source-derived case information.
- Citation
- [2017] KEELC 2622 (KLR)
- Parties
- Plaintiff: Justus Kilonzi Mutungi; Plaintiff: Kitilo Mutungi Kamina; Defendant: Mutua Kamina; Defendant: Kimondiu Kisyanga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 85 of 2006
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Plaintiffs' suit allowed; eviction and costs awarded.
- Judges
- OA Angote
- Legal Topics
- Land Ownership, Title Registration, Eviction, Trespass, Indefeasibility of Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justus Kilonzi Mutungi
Plaintiff
Kitilo Mutungi Kamina
Plaintiff
Mutua Kamina
Defendant
Kimondiu Kisyanga
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the Plaintiffs are the registered proprietors of parcel Nzaui/Kalamba/55.
- 2 Whether the Defendants have trespassed on the Plaintiffs' land.
- 3 Whether the Plaintiffs are entitled to orders of eviction against the Defendants.
Ratio Decidendi
The Plaintiffs produced a valid Title Deed and official search showing they are the registered proprietors of Nzaui/Kalamba/55. The Defendants, having failed to appear or contest the suit, provided no evidence to challenge the Plaintiffs' title or to suggest fraud or mistake in its issuance. Section 26(1) of the Land Registration Act provides that a certificate of title is prima facie evidence of ownership, and in the absence of contrary evidence, the court must recognize the Plaintiffs as the absolute and indefeasible owners. The continued occupation by the Defendants constitutes trespass, and the Plaintiffs are entitled to eviction orders and costs.
Court Disposition
Plaintiffs' suit allowed; eviction and costs awarded.
Orders
- The Defendants be evicted from parcel of land known as Nzaui/Kalamba/55 within 90 days from the date of service of the decree of this court on the Defendants.
- The Defendants to pay the costs of the suit.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 85 OF 2006
JUSTUS KILONZI MUTUNGI ......................................1ST PLAINTIFF
KITILO MUTUNGI KAMINA ........................................2ND PLAINTIFF
VERUS
MUTUA KAMINA.......................................................1ST DEFENDANT
KIMONDIU KISYANGA ............................................2ND DEFENDANT
JUDGMENT
1. In their Plaint dated 6th September, 2006, the Plaintiffs averred that they are the registered proprietors of a parcel of land known as Nzaui/Kalamba/55 (the suit land);that since the year 2006, the Defendants have been trespassing on the land and that the Defendants should be evicted from the suit land.
2. Although the Defendants were served with Summons to Enter Appearance, they neither entered appearance nor filed a Defence.
3. This matter proceeded for formal proof on 28th March, 2017.
4. The 1st Plaintiff, PW1, informed the court that the Defendants have trespassed on his land; that when he reported the matter to the District Commissioner, the District Commissioner ordered the Defendants to vacate the suit land and that the Defendants have refused to obey the said directive.
5. PW1 produced in evidence the Title Deed in respect of parcel of land number Nzaui/Kalamba/55 which was issued to him together with his mother on 3rd January, 2006.
6. I have perused the said Title Deed together with the official search.
7. The Title Deed and the official search in respect of parcel of land number Nzaui/Kalamba/55 shows that the Plaintiffs were registered as the proprietors of the land on 30th January, 2006.
8. Considering that under Section 26(1) of the Land Registration Act, a certificate of title issued by the Registrar up0n registration shall be taken by all courts as prima facie evidence that the person named as the proprietor of the land is the absolute and indefeasible owner, and in the absence of evidence to show that the Plaintiffs were issued with the Title Deed fraudulently or by mistake, I find and hold that the Plaintiffs have proved their case on a balance of probabilities.
9. For those reasons, I allow the Plaintiffs’ Plaint dated 6th September, 2006 as follows:
a. The Defendants be evicted from parcel of land known as Nzaui/Kalamba/55 within 90 days from the date of service of the decree of this court on the Defendants.
b. The Defendants to pay the costs of the suit.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 30TH DAY OF JUNE, 2017.
O. A. ANGOTE
JUDGE