[2013] KEHC 3279 (KLR)
The court found that the Plaintiffs had established, through unchallenged documentary evidence, that the late George Bomett was the original allotee of Plot No. 80/Kosprin Shirika Settlement Scheme. The 1st Plaintiff, as administratrix, had obtained Letters of Administration and paid all outstanding charges, vesting...
Source-derived case information.
- Citation
- [2013] KEHC 3279 (KLR)
- Parties
- Plaintiff: Martha Bomett; Plaintiff: Benard Kipkoech Bomett; Defendant: Calmax Wanyama Simiyu
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 17 of 2006
- Procedural Posture
- Civil Suit / Judgment After Formal Proof
- Outcome
- Plaintiffs' claim succeeded; orders of eviction and permanent injunction granted.
- Judges
- EO Obaga
- Legal Topics
- Eviction, Permanent Injunction, Succession Rights, Allocation of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martha Bomett
Plaintiff
Benard Kipkoech Bomett
Plaintiff
Calmax Wanyama Simiyu
Defendant
Procedural Posture
Civil Suit / Judgment After Formal Proof
Legal Issues
- 1 Whether the Plaintiffs are entitled to an order of eviction against the Defendant from Plot No. 80/Kosprin Shirika Settlement Scheme.
- 2 Whether the Plaintiffs are entitled to a permanent injunction restraining the Defendant from interfering with the suit property.
- 3 Whether the Plaintiffs have established ownership and exclusive rights over the suit property.
Ratio Decidendi
The court found that the Plaintiffs had established, through unchallenged documentary evidence, that the late George Bomett was the original allotee of Plot No. 80/Kosprin Shirika Settlement Scheme. The 1st Plaintiff, as administratrix, had obtained Letters of Administration and paid all outstanding charges, vesting the property in her by succession. The Defendant's occupation was unlawful, having been convicted of forcible detainer and failing to vacate despite the conviction. The Plaintiffs proved their case on a balance of probabilities and were entitled to an order of eviction and a permanent injunction as prayed.
Court Disposition
Plaintiffs' claim succeeded; orders of eviction and permanent injunction granted.
Orders
- An order of eviction against the Defendant and/or his servants is issued as prayed for in the Plaint.
- The Defendant is permanently injuncted from interfering in any way with Plot No. 80/Kosprin Shirika Settlement Scheme.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
High Court at Kitale
Civil Suit 17 of 2006
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MARTHA BOMETT ........................................................….}
BENARD KIPKOECH BOMETT ..................................…... PLAINTIFFS
VERSUS
CALMAX WANYAMA SIMIYU ......................................... DEFENDANT
J U D G M E N T
The Plaintiffs Martha Bomett and Bernard Kipkoech Bomett brought this suit against the Defendant Calmax Simiyu seeking an order of eviction against the Defendant and a permanent injunction restraining the Defendant from interfering with Plot No. 80/Kosprin Shirika Settlement Scheme. The Defendant who was duly served with Plaint and Summons to enter appearance neither entered appearance nor filed defence. The hearing proceeded by way of Formal Proof. During the hearing, the 1st Plaintiff testified that she is the administratrix of her late husband George Bomett together with her son the 2nd Plaintiff herein. Prior to the death of her husband, her husband had been allocated Plot No. 80 at Shirika Settlement Scheme. She produced letter of allotment (exhibit 1). She produced a receipt for Kshs. 3,025/- dated 23/11/1983 issued to her late husband by the Settlement Fund Trustee (exhibit 2). She also produced another receipt for Kshs. 45,000 dated 24/04/1997 being accumulated charges due to the Settlement Fund Trustee paid after the death of her husband (exhibit 3). She also produced a charge from the Ministry of Land, Settlement and Physical Planning (exhibit 4) which shows that her late husband was allotee of Plot No. 80.
In 1999, the Defendant herein invaded the land and has since prevented her from accessing the land. She complained about the invasion to the Director of Land Adjudication and Settlement who wrote a letter to the District Land Adjudication and Settlement Officer Trans-Nzoia, confirming that the land had been allocated to the late George Bomett (exhibit 5).
In 2001, the Defendant was arrested and charged for forcible detainer and was convicted and fined Kshs. 25,000 in default serve 6 months imprisonment. The proceedings and judgment were produced as (exhibit 9). This conviction notwithstanding, the Defendant has refused to move out of the land. I have carefully considered the evidence adduced by the 1st Plaintiff which is not challenged. The 1st Plaintiff succeeded in showing that Plot no. 80 at Shirika Settlement Scheme was allocated to her late husband. She has since taken out Letters of Administration for the estate of her husband which grant has already been confirmed. She has gone ahead to pay for conveyancing fees. It is clear that the land has vested in her by virtue of succession. She is entitled to the exclusive use of the same. The Defendant has no business being on the suitland. I find that the Plaintiffs have proved their case on a balance of probabilities. Their claim succeeds with the result that an order of eviction against the Defendant and or his servants is hereby issued as prayed for in the Plaint. The Defendant is also hereby permanently injuncted from in any way interfering with Plot No. 80/Kosprin Shirika Settlement Scheme. The Plaintiffs shall have costs of this suit.
Dated, signed and delivered in Open Court on this 16th day of May, 2013.
E. OBAGA
JUDGE
In the presence of Mr. Chepkwony for Plaintiff.
Court Clerk: Koskey.
E. OBAGA
JUDGE
16/05/2013
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