[2013] KEHC 1067 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

E & L CIVIL CASE NO. 155 OF 2012

LUCY MORAA ONGUTI……………………..PLAINTIFF

VERSUS

MOSES OGERO ONGUTI……………………………………..1ST DEFENDANT

ROBERT OMBASA ONGUTI…………………….…..…….2ND DEFENDANT

JUDGMENT

The Plaintiff is the registered proprietor of all that parcel of land known as LR No. Wanjare/Bomariba/2964 (hereinafter referred to as “the suit property”). The Plaintiff brought this suit against the defendants by way of a Plaint dated 30th April, 2012 in which the Plaintiff sought an order of permanent injunction to restrain the defendants from interfering with the Plaintiff’s possession, occupation, use and enjoyment of the suit property in any manner whatsoever and, any other order the court may deem fit to grant. In the Plaint, the Plaintiff averred that, she is the registered proprietor of the suit property and as such she has the right to possess, occupy, use and enjoy the suit property without any interference from the defendants who are her adoptive brothers or anybody else. The Plaintiff averred further that on or about 11th April, 2012; the defendants entered the suit property and without any lawful cause or authority erected boundary features thereon in a bid to share the same between themselves. The Plaintiff averred further that, from that date, the defendants have been persistently harassing and threatening to harm and evict the Plaintiff from the suit property in an attempt to unlawfully dispossess the Plaintiff of the same. In the process, the defendants have interfered with the Plaintiff’s quiet possession, use and enjoyment of the suit property. It is on account of the foregoing that the Plaintiff was forced to come to court to seek the orders set out in the plaint.

The defendants were served with the summons to enter appearance but neither entered appearance nor filed a statement of defence to the Plaintiff’s claim. This suit was fixed for formal proof on 4th June, 2013. Although it was not necessary to serve a hearing notice upon the defendants having failed to enter appearance, the Plaintiff did cause a hearing notice to be served upon them. The defendants failed to appear in court on that day and the hearing of the case proceeded in their absence. The Plaintiff gave evidence and called two witnesses. In her evidence, the Plaintiff testified that; the defendants are her adoptive brothers. The Plaintiff’s mother gave birth to boys who died living her without male children in the family. The Plaintiff’s mother then decided to adopt the defendants. The Plaintiff is the owner of the suit property on which she lives together with the defendants. The Plaintiff is not married and the defendants are threatening to evict her from the suit property. The Plaintiff testified that the defendants come from time to time at her place of residence to threaten her and one day, they came and purported to sub-divide the suit property between themselves. The Plaintiff reported the incident to the area assistant chief but no action was taken against the defendants. A part from the defendants, the Plaintiff resides on the suit property with her elder sister one, Pascalia Kerubo Onguti who is also not married. The Plaintiff urged the court to order the sub-division of the suit property into two so that the Plaintiff and her sister may occupy one portion and the defendants the other. The Plaintiff also prayed for injunction to restrain the defendants from interfering with her occupation of the suit property. The Plaintiff stated that the suit property was transferred to her by her mother, Monyenche Onguti before she died. She produced in evidence a copy of the title deed for the suit property in her name and a copy of a certificate of official search on the title of the suit property which shows that the suit property is registered in her name. The Plaintiff’s first witness was, ONDORO MAKURU (hereinafter referred to as ”PW2”). He testified that he is a cousin to the Plaintiff and that he knows the defendants. He testified that the defendants were adopted by the Plaintiff’s deceased mother and that the Plaintiff and the defendants live on the suit property which was given to the Plaintiff by her mother. After the death of the Plaintiff’s mother, a dispute arose over the ownership of the suit property and the defendants proceeded to sub-divide the suit property between them. Since then, the defendants have been trying to evict the Plaintiff and her sister who are both unmarried from the suit property. PW2 testified that the defendants have been very uncooperative in having the matter resolved amicably. He suggested that the suit property be sub-divided into two portions so that the Plaintiff and her sister may occupy one portion and the defendants the other. The Plaintiff’s second witness (“PW3”) was, PASCALIA KERUBO ONGUTI. She is the Plaintiff’s elder sister. She confirmed the testimony of the Plaintiff as regards their relationship with the defendants. He testified that the defendants want to evict the Plaintiff and her from the suit property. She urged the court to order the sub-division of the suit property into two equal portions so that the Plaintiff and she may have one portion and the defendants the other. PW3 stated that they don’t live in one homestead with the defendants. He stated that the defendants live in a separate homestead on the suit property.

The Plaintiff closed her case after the evidence of PW3. The Plaintiff’s advocate Mr. Nyasimi in his final submissions relied on the evidence on record and urged the court to enter judgment for the Plaintiff as prayed in the Plaint. I have considered the Plaintiff’s case as pleaded and the evidence tendered in support thereof. The Plaintiffs’ claim against the defendant is based on the tort of trespass. In the book, Clerk & Lindsell on Torts, 18th Edition at paragraph 18-01, trespass to land is defined as consisting of “any unjustifiable intrusion by one person upon land in the possession of another.”I am satisfied from the Plaintiff’s testimony and the documents produced by the Plaintiff in evidence that the Plaintiff has proved on a balance of probability that the defendants committed the acts of trespass complained of. The Plaintiff proved that the suit property is registered in her name. The Plaintiff produced in evidence a title deed for the suit property in her name and a certificate of official search which confirmed that the Plaintiff was registered as the proprietor of the suit property on 9th August, 2011. The Plaintiff testified that the defendants are his adoptive brothers. The defendants were adopted by the Plaintiff’s mother who did not have male children of her own. The Plaintiff testified that before her mother’s death, her mother transferred the suit property to her. The Plaintiff, her elder sister and the defendants have been occupying the suit property since her mother’s death until sometimes in April, 2012 when the defendants purported to sub-divide and share the suit property between them. The Plaintiff testified that since the date of the said purported sub-division, the defendants have been trying to forcibly evict the Plaintiff from the suit property. The Plaintiff has been harassed and has received numerous threats of harm and eviction from the defendants. The Plaintiff’s testimony was corroborated by the testimony of PW2 and PW3. The defendants although served did not enter appearance and as such failed to tender any evidence at the trial to disprove these allegations. The Plaintiff’s testimony was therefore not controverted. It is my finding therefore that the Plaintiff has proved that she is the registered proprietor of the suit property and that defendants have been making unlawful attempts to evict her therefrom in violation of her proprietary rights under sections 24, 25 and 26 of the Land Registration Act, 2012. Whereas the defendants may have a right to occupy a portion of the suit property, they have no right to evict the Plaintiff therefrom or to interfere with the Plaintiff’s occupation and enjoyment of the portion of the suit property in her possession. The defendant’s purported sub-division and sharing of the suit property between them and attempts made thereafter by them to evict the Plaintiff from the suit property amount to trespass. I am satisfied that the Plaintiff has proved her case against the defendants on a balance of probability. I therefore enter judgment for the plaintiff against the defendants in terms of prayer No. 1 in the Plaint dated 30th April, 2012. I would wish to add further that the Plaintiff as the registered proprietor of the suit property is at liberty to cause the suit property to be sub-divided into two (2) equal portions taking into account the locations of the homesteads of the defendants and the Plaintiff on the ground and to have one of the portions registered in the joint names of the defendants and the other portion in the name of the Plaintiff and her sister. The Plaintiff shall have the costs of this suit.

Signed, dated and delivered at KISII this 7th day of November, 2013

S. OKONG’O,

JUDGE.

In the presence of:-

Mr. Nyasimi for the Plaintiff

No appearance for the Defendants

Mobisa Court Clerk.

S. OKONG’O,

JUDGE.

E&LCC.NO.155 OF 2012