[2018] KEELC 4566 (KLR)
The court found that the defendant failed to attend two scheduled hearings without providing satisfactory reasons. Under Order 12 of the Civil Procedure Rules, the absence of a party without cogent explanation entitles the court to proceed in their absence. The plaintiff's case was uncontroverted, and the evidence...
Source-derived case information.
- Citation
- [2018] KEELC 4566 (KLR)
- Parties
- Plaintiff: Mary Ciambaka Mwiandi; Defendant: Benson Mugendi Mbaka
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 250 of 2017
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- judgment for the plaintiff
- Judges
- FM Njoroge
- Legal Topics
- Land Boundary Dispute, Ownership Declaration, Civil Procedure Nonattendance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Ciambaka Mwiandi
Plaintiff
Benson Mugendi Mbaka
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the plaintiff has proved ownership of Plot No. 19 Ndagani Trading Centre, Chuka.
- 2 Whether the defendant's absence and failure to controvert the plaintiff's case warrants judgment in favour of the plaintiff.
- 3 Whether the court should issue orders for beacons and boundary demarcation between the suit properties.
Ratio Decidendi
The court found that the defendant failed to attend two scheduled hearings without providing satisfactory reasons. Under Order 12 of the Civil Procedure Rules, the absence of a party without cogent explanation entitles the court to proceed in their absence. The plaintiff's case was uncontroverted, and the evidence presented was deemed sufficient to prove ownership of Plot No. 19 Ndagani Trading Centre, Chuka. The court therefore entered judgment for the plaintiff, ordered the relevant authorities to beacon the boundary between the suit properties, declared the plaintiff's ownership, and awarded costs to the plaintiff.
Court Disposition
judgment for the plaintiff
Orders
- The Land Registrar, District Surveyor, and County Government of Tharaka Nithi are directed to visit the suit land and beacon the common boundary between Plot No. 19 Ndagani Trading Centre, Chuka and LR: KARINGANI/NDAGANI/762.
- It is declared that Plot No. 19 Ndagani Trading Centre, Chuka is not LR: KARINGANI/NDAGANI/762 and the same belongs to the plaintiff.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO. 250 OF 2017
FORMERLY MERU ELC. 97 OF 2013
MARY CIAMBAKA MWIANDI…..……...…..PLAINTIFF/APPLICANT
VERSUS
BENSON MUGENDI MBAKA……………………………DEFENDANT
JUDGMENT
1. This suit was to be heard on 13. 2.2018. Mr. I.C. Mugo for the plaintiff told the court that he was ready to proceed. His client, the plaintiff, was in court. Mr. Murango Mwenda, holding brief for Otieno C, told the court that the defendant’s advocate was not ready to proceed as by the time he received the hearing notice, he had other matters in other courts. It is noted that the hearing notice was ordered to be issued by the court after the parties failed to come to court for hearing on 28. 11. 2017. Indeed the court should have dismissed the suit then, but in the interest of justice gave the parties a chance for them to prosecute their case.
2. The suit was called on outside by the Court Assistant, Mr. Ndegwa. It was confirmed that the defendant had not come to court to participate in the hearing slated for today.
3. Order 12 of the Civil Procedure Rules, requires the presence of the litigants and not the presence of their advocates. The advocates can give cogent reasons for the absence of their clients. If the reasons are satisfactory, the court will invariably give the matter another date for hearing or directions. In this case, the defendant has missed two hearing dates with no satisfactory explanations. It does not matter that the matter is part heard. The defendant is not in court.
4. In the circumstances, I find it meritorious to dismiss this suit against the defendant.
5. The plaintiff is deemed to have proved his case, which the defendant has not controverted.
6. Judgment is entered for the plaintiff in the following terms:
a)An order is hereby issued directing the Land Registrar, The District Surveyor and the County Government of Tharaka Nithi to visit the suit land and beacon the common boundary between PLOT NO. 19 NDAGANI TRADING CENTRE, CHUKA and LR: KARINGANI/NDAGANI/762.
b) It is declared that PLOT NO. 19 NDAGANI TRADING CENTRE, CHUKA is not LR: KARINGANI/NDAGANI/762 and the same belongs to the plaintiff.
c) Costs are awarded to the plaintiff.
Delivered in open court at Chuka this 13th day of February, 2018 in the presence of:
CA: Ndegwa
I.C. Mugo for the plaintiff
Murang’o Mwenda h/b Otieno C for the defendant
P.M. NJOROGE
JUDGE