[2008] KEHC 2381 (KLR)
The court found that the plaintiff, as administratrix of the deceased's estate, had proved on a balance of probabilities that the deceased was the registered proprietor of the suit land and that the defendant had no legal basis for his continued occupation or trespass. The defendant's prior conviction for forcible...
Source-derived case information.
- Citation
- [2008] KEHC 2381 (KLR)
- Parties
- Plaintiff: Loice Kemunto Mogire (suing on behalf of the estate of David Mogire Omwega); Defendant: James Kerindi Omwega
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 40 of 2006
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Claim allowed. Permanent injunction granted against the defendant. Costs awarded to the plaintiff.
- Legal Topics
- Trespass, Forcible Detainer, Permanent Injunction
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Loice Kemunto Mogire (suing on behalf of the estate of David Mogire Omwega)
Plaintiff
James Kerindi Omwega
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendant unlawfully trespassed upon the suit land registered as BASSI/BOSANSA/1561.
- 2 Whether the plaintiff is entitled to a permanent injunction restraining the defendant from trespassing on the suit land.
Ratio Decidendi
The court found that the plaintiff, as administratrix of the deceased's estate, had proved on a balance of probabilities that the deceased was the registered proprietor of the suit land and that the defendant had no legal basis for his continued occupation or trespass. The defendant's prior conviction for forcible detainer further supported the plaintiff's claim. The absence of any defence or contrary evidence from the defendant left the plaintiff's case unchallenged. The court concluded that the plaintiff was entitled to a permanent injunction restraining the defendant from trespassing upon the suit land and awarded costs to the plaintiff.
Court Disposition
Claim allowed. Permanent injunction granted against the defendant. Costs awarded to the plaintiff.
Orders
- A permanent injunction is hereby issued restraining the defendant, his servants, workers and/or agents from trespassing upon land parcel BASSI/BOSANSA/1561.
- The defendant shall bear the costs of this suit.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII
Civil Case 40 of 2006
LOICE KEMUNTO MOGIRE
(suing on behalf of the estate
of DAVID MOGIRE OMWEGA)……………….. PLAINTIFF
VERSUS
JAMES KERINDI OMWEGA ………………….. DEFENDANT
JUDGMENT
The plaintiff is the administratrix of the estate of the late DAVID MOGIRE OMWENGA, herein after referred to as “the deceased”. The deceased was the registered proprietor of a parcel of land registered as BASSI/BOSANSA/1561, herein after referred to as the “the suit land”. The plaintiff averred that sometimes in December 1999 the defendant forcibly and unlawfully trespassed upon the suit land and disturbed her quiet and peaceful possession of the same. Thereafter the defendant was arrested and charged with forcible detainer of the suit land vide Criminal Case No.153 of 2000 before the Chief Magistrate’s Court at Kisii. He was convicted and sentenced to 2 years’ imprisonment. The plaintiff produced the proceedings and the judgment in the aforesaid criminal case.
That notwithstanding, the defendant has continued to trespass upon the suit land, the plaintiff stated. She prayed for a permanent injunction to restrain the defendant, his servants, workers and/or agents from trespassing upon the suit land. The defendant did not file any defence and consequently the matter proceeded to formal proof.
I am satisfied that the plaintiff has proved her claim on a balance of probabilities. There is no dispute that the deceased is the registered proprietor of the suit land. A certificate of official search was produced as proof thereof. The defendant has no legal basis of trespassing upon the suit land. I grant the order of permanent injunction as sought by the plaintiff. The defendant will bear costs of this suit.
DATED, SIGNED and DELIVERED at KISII this 30thday of May, 2008
D. MUSINGA
JUDGE.
Delivered in open court in the presence of:
Mr. Nyambati HB for Mr. Mogire for the plaintiff
N/A for the defendant.
D. MUSINGA
JUDGE.