[2010] KEHC 2367 (KLR)
The court found that the plaintiff had proved, on a balance of probabilities, that he was the absolute proprietor of plot No. 50 Kapkoi Settlement Scheme, having produced documentary evidence including a receipt, clearance letter, and title deed. The defendant, having failed to enter appearance or file a defence,...
Source-derived case information.
- Citation
- [2010] KEHC 2367 (KLR)
- Parties
- Plaintiff: Kipngok K Chemitan; Defendant: Joseph Wabomba Wanyama
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Case 50 of 2006
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Judgment for the plaintiff.
- Legal Topics
- Trespass to Land, Eviction, Ownership of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kipngok K Chemitan
Plaintiff
Joseph Wabomba Wanyama
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is the absolute proprietor of plot No. 50 Kapkoi Settlement Scheme.
- 2 Whether the defendant's occupation of the suit land constitutes trespass.
- 3 Whether the plaintiff is entitled to an order of eviction against the defendant.
Ratio Decidendi
The court found that the plaintiff had proved, on a balance of probabilities, that he was the absolute proprietor of plot No. 50 Kapkoi Settlement Scheme, having produced documentary evidence including a receipt, clearance letter, and title deed. The defendant, having failed to enter appearance or file a defence, did not rebut the plaintiff's evidence. The court held that the defendant's occupation of the land without the plaintiff's consent constituted trespass. Consequently, the plaintiff was entitled to an order for the defendant's eviction, as well as costs and interest as prayed in the plaint.
Court Disposition
Judgment for the plaintiff.
Orders
- The defendant shall move out of plot No. 50 Kapkoi Settlement Scheme, failing which he shall be evicted.
- The defendant shall pay the costs of the suit.
Full Case Text
Judgment text and source record
20 paragraphs
KIPNG’OK K CHEMITAN………………………….....................................................................................................................................……….PLAINTIFF
VERSUS
JOSEPH WABOMBA WANYAMA ……………...............................................................................................................................…………..DEFENDANT
JUDGMENT
By a plaint dated4th April, 2006, the plaintiff herein, Kipngok K Chemitan, sued the defendant herein Joseph Wabomba Wanyama.
The plaintiff sought judgment against the defendant for:
(a)An order that the defendant do moveout of plot No. 50 Kapkoi Settlement Scheme failing which he be evicted therefrom,
(b)Costs,
(c)Interest.
The plaintiff’s cause of action is embodied in paragraph 3 – 7 of the plaint.
The defendant was served with Summons to Enter Appearancebut failed to enter appearance or file defence within the time prescribed by the law. On application the plaintiff sought leave of the court to formally prove his case.
The plaintiff testified on oath that he is the sole owner of plot No. 50 in Kapkoi Settlement Scheme measuring 5 acres.That he bought the same from the Settlement FundsTrustee at Kshs. 15,000/-.In support of his claim he produced official receipt No.0580848 dated27th May, 2004issued under the hand of theDistrictLandAdjudication/settlement Officer Trans-Nzoia District as Exh P 1. Subsequently he was issued with a clearance letter dated28th January, 2008which he tendered as Exhibit P 2. Last but not least, he was issued with a title deed in respect of the suit land on30th March, 2009which he tendered in evidence as exhibit P 3.
In the premises, it was the plaintiff’s case that he thereby acquired absolute proprietorship of the suit land.
By reason of the foregoing matters when the defendant forcibly entered into and occupied part of the suit land and remained thereat without his consent, the defendant’s acts constitutes an act of trespass. Hence thedefendant’s prayer that he be evicted therefrom.
I have carefully weighedand considered the evidence adduced by the plaintiff. In the absence of evidence to the contrary in rebuttal from the defendant, I find and hold that the plaintiff has proved his case against the defendant on a balance of probability.
Accordingly, there shall be orders in terms of prayer (a) (b) and (c) of the plaint.
Dated and delivered at Kitale this 3rd day of March, 2010
N R O OMBIJA
JUDGE
Mr. Njorogefor Chebii: for plaintiff