[2018] KEELC 771 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT AT KISII

CASE NO. 291 OF 2014

MALACK NYAMBUTORA...........................PLAINTIFF

VERSUS

KERUBO MBAKA.................................1ST DEFENDANT

TOM MBAKA........................................2ND DEFENDANT

NECO MBAKA......................................3RD DEFENDANT

MUMA MBAKA....................................4TH DEFENDANT

EDNA OSEMO......................................5TH DEFENDANT

OSEKO MBAKA...................................6TH DEFENDANT

J U D G M E N T

1. The plaintiff filed the instant suit vide a plaint dated 25th July 2014. The plaintiff’s claim was that the defendants in or about 2010 unlawfully and without any justifiable cause entered onto his parcel of land known as Majoge/Bombaba/2946(hereinafter referred to as “the suit property”) and committed acts of waste and have continued in trespass. The plaintiff prays for judgment against the defendants jointly and severally for:

(a) An order of eviction of the defendants from that parcel of land known as Majoge/Bombaba/2946.

(b) An order of permanent injunction restraining the defendants by themselves, their agents, servants and/or employees from entering onto, cultivating, trespassing on or in any manner whatsoever interfering with land parcel No. Majoge/Bombaba/2946.

(c) Mesne profits.

(d) Costs of the suit and interest at court rates.

(e) Further or other relief deemed just.

2. The defendants upon being served with summons to enter appearance filed a memorandum of appearance through the firm of Richard Miencha & Associates on 5th September 2014 but did not file any defence. The plaintiff was granted an interlocutory order of injunction on 6th December 2016. The defendants disobeyed the order of injunction restraining them from trespassing onto the suit land and extracting the rock on the suit property and making ballast and/or bricks or in other manner interfering with the suit land parcel No. Majoge/Bombaba/2946 pending the hearing and determination of the suit. The 2nd and 5th defendants were on 29th May 2017 found guilty of contempt of court and were committed to serve 30 days in civil jail.

3. The suit was fixed for formal proof hearing on 30th July 2018. The defendants were served with a hearing notice on 11th May 2018 as per the filed affidavit of service sworn by Isaac Nyangena Kemari on 27th July 2018 and filed in court on 30th July 2018. The defendants did not appear during the hearing and the plaintiff proceeded with the hearing ex parte.

4. The plaintiff testified that his late father was the registered owner of land parcel number Majoge/Bombaba/899 which he had purchased from the defendant’s late father. The plaintiff stated that the land was subdivided into three portions namely land parcels Majoge/Bombaba/ 2946, 2947and 2948. He stated that land parcel Majoge/Bombaba/ 2946 was transferred in his name while the other two parcels were registered in the names of his two brothers. The plaintiff relied on his filed witness statement dated 25th July 2014 and the bundle of documents filed together with the plaint as per the list of documents dated 25th July 2014 which documents were produced as “PEx 1-8”. The plaintiff additionally produced a survey map for Bombaba Registration Section (Sheet No. 13) showing the delineation of land parcels 2946, 2947 and 2948 as “PEx.9”.

5. The plaintiff explained that his father had been using the initial land for farming and had planted trees and nappier grass. The plaintiff testified that he had planted tea bushes on his portion of land. He stated further that the defendants in 2010 unlawfully entered into his parcel of land and that of his brothers and started using the same without any permission or authority. The plaintiff stated that the defendants have not constructed on his portion of land though they have been in occupation. He stated that efforts to resolve the matter through the local administration failed to yield any fruit necessitating the filing of the instant suit. The plaintiff sought an order for the eviction of the defendants and the costs of the suit.

6. On the evidence adduced by the plaintiff there is no doubt he is the registered owner of land parcel Majoge/Bombaba/2946 as evidenced by the copy of title deed annexed to the bundle of documents “PEx.1”. The title shows the plaintiff was registered as owner on 21st November 2007 when he was issued with the title. The certificate of confirmation of grant “PEx.3” to the estate of the late Simon Nyambutora Omwange shows land parcel Majoge/Bombaba/899 was distributed equally to Malack Nyambutora (the plaintiff herein), Julius Kennedy Nyambutora and James Ochagwa Nyambutora. The mutation form for parcel Majoge/Bombaba/899 “PEx.4” shows the land was subdivided into parcels 2946, 2947 and 2948. I therefore make a finding that the plaintiff is the duly registered owner of land parcel Majoge/Bombaba/2946. As such registered owner he is vested with exclusive rights of ownership and is entitled to the use and possession of the land without any hinderance and/or interference from anybody.

7. The plaintiff testified that the defendants unlawfully entered his parcel of land in 2010 and started utilizing the same. The defendants have been found to be in breach of injunction granted in favour of the plaintiff barring them from utilizing the land until the case was determined in one way or the other. This is clear evidence of trespass onto the plaintiff’s parcel of land. The plaintiff’s evidence was not contraverted as the defendants never entered any defence and neither did they attend court during the hearing. The plaintiff’s evidence was therefore unchallenged and the court accepts the same and makes a finding that the plaintiff is the owner of the suit property and that the defendants are in unlawful occupation and/or possession of the same. The defendants have no right to be on the plaintiff’s land without his permission or authority.

8. Although the plaintiff prays for an order for payment of mesne profits no basis was laid to enable the court to award the same. The letter from the Divisional Agricultural Extension Officer “PEx.6” showing the value of damaged nappier grass as kshs.10,886/= and the claim of kshs.25,263/- as per demand letter “PEx.5” for damaged tree seedlings would constitute a special damages claim which the law requires to be specifically pleaded and proved. They were neither pleaded nor proved and cannot be awarded.

9. After due consideration of the evidence tendered by the plaintiff, I am satisfied that the plaintiff has proved his case on a balance of probabilities. I accordingly enter judgment in favour of the plaintiff against the defendants jointly and severally in the following terms:-

1. The defendants are ordered to vacate and deliver vacant possession of LR No. Majoge/Bombaba/2946 within 30 days of being served with the decree herein failing which an order for the forcible eviction of the defendants from the land to issue on application by the plaintiff.

2. An order of permanent injunction restraining the defendants by themselves, their agents, servants and/or employees from entering onto, cultivating, trespassing on or in any a manner whatsoever interfering with land parcel No. Majoge/Bombaba/2946.

3. The costs of the suit are awarded to the plaintiff.

JUDGMENT DATED, SIGNEDandDELIVEREDatKISIIthis23RD DAYofNOVEMBER 2018.

J. M. MUTUNGI

JUDGE

In the presence of:

Mr. Soire for Anyona for the plaintiff

N/A for the 1st, 2nd, 3rd, 4th, 5th and 6th defendants

Saitoti Court assistant

J. M. MUTUNGI

JUDGE