[2017] KEELC 3520 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT KERICHO

CIVIL SUIT NO. 13 OF 2011

KIPROTICH ARAP CHEPKWONY………………PLAINTIFF

VERSUS

SIMION LANGAT……………….……………1ST DEFENDANT

SAMSON MULOTI………………………….2ND DEFENDANT

DAVID NGENO………………………………3RD DEFENDANT

CHUMEK ARAP KETER……..……………..4TH DEFENDANT

JUDGMENT

(Suit by plaintiff for possession of land; defendants having invaded plaintiff's land; defendants filing a counterclaim for adverse possession; defendants not attending court on the day of the hearing; no proof tendered that defendants are entitled to the land by way of adverse possession; plaintiff's case succeeds with costs)

This suit was commenced by way of plaint that was filed on 22 February 2011. It is pleaded that the plaintiff is the registered proprietor of the land parcel Transmara/Olosokwana 'B'/29. It is averred that the defendants have trespassed into the land and cultivated it without the consent of the plaintiff. In the suit, the plaintiff wants the following orders :-

i) An order compelling the defendants to give vacant possession of the suit land and in default an order of eviction do issue.

ii) Costs and interest of this suit.

iii) Any other relief this Honourable Court may deem fit and just to grant.

Despite being served, the 2nd defendant did not enter appearance.

The 1st, 3rd and 4th defendants however filed defence and counterclaim. They denied the alleged trespass and the 4th defendant averred that he has been on the land since the year 1963 and has lived on the land for all these years together with his family. It is pleaded that the claim of the plaintiff is time barred. It is pleaded that in the year 2003, the 4th defendant sold a portion of the land to the 1st defendant. Their counterclaim is based on the doctrine of adverse possession. It is contended inter alia that the plaintiff has been absent from the land since the year 1988.

On the day of the hearing of the suit, which was 28th September 2016, the defendants and their counsel did not appear despite being properly served. I allowed the matter to proceed in their absence.

In his evidence, the plaintiff testified inter alia that he obtained title to the suit land in the year 2011 and he produced the title deed as an exhibit. He stated that the defendants invaded his land after which he reported to the police and the 2nd and 3rd defendants were charged with the criminal offence of Forcible Detainer contrary to Section 91 of the Penal Code in Kilgoris Principal Magistrate's Court Case No. 391 of 2013. The two persons were convicted and sentenced to serve 2 years of probation on 17th June 2014. He testified that despite succeeding in the criminal case, the defendants are still on his land.

With the above evidence, the plaintiff closed his case. The said evidence is not controverted by the defendants who failed to appear in court. I have seen from the documentary evidence tendered, especially the title deed and the official search, that the plaintiff is indeed the registered proprietor of the suit land. As proprietor, he is entitled to enjoy all rights of such proprietorship including the right of exclusive possession. These rights are set out in Section 25 of the Land Registration Act, as follows :-

Rights of a proprietor.

25. (1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—

(a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and

(b) to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register.

(2) Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee.

The defendants have not tendered any evidence which will go to prove that the plaintiff ought not to enjoy his rights as proprietor. They had presented a case for adverse possession, but they did not attend to prove the same. I therefore do not have any basis upon which it can be held that the plaintiff's case is time barred and no ground to hold that the defendants are entitled to the suit land by way of adverse possession.

The plaintiff's case must succeed and does succeed with costs. The counterclaim of the defendant must fail and the same is hereby dismissed with costs.

The defendants are hereby ordered to vacate the suit land within 30 days of being notified of this judgment and in default, the plaintiff is at liberty to apply for their eviction.

It is so ordered.

Dated, signed and delivered in open court at Kericho this 3rd day of February, 2017

MUNYAO SILA

JUDGE

ENVIRONMENT & LAND COURT

KERICHO

PRESENT

Ms. Kitur holding brief for Mr. Moracha for the Plaintiff

No appearance on part of M/s Koech J.K & Co. Advocates for 1st, 3rd and 4th Defendants.

No appearance on part of the 2nd Defendant

Court Assistant; Wambany

Court Assistant; Wambany