[2012] KEHC 3494 (KLR)
The court found that the plaintiff's evidence of registered ownership was uncontroverted, and the defendant, having failed to defend the suit, had no lawful claim to the land. The plaintiff, as the surviving registered proprietor, is entitled to exclusive possession of his share of the land. The defendant's...
Source-derived case information.
- Citation
- [2012] KEHC 3494 (KLR)
- Parties
- Plaintiff: Meltus Wanyama Obwete; Defendant: Maurice Wandera Nabuya
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 74 of 2011
- Procedural Posture
- Civil Suit / Judgment After Ex Parte Hearing
- Outcome
- judgment for the plaintiff
- Legal Topics
- Eviction, Registered Proprietorship, Land Encroachment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Meltus Wanyama Obwete
Plaintiff
Maurice Wandera Nabuya
Defendant
Procedural Posture
Civil Suit / Judgment After Ex Parte Hearing
Legal Issues
- 1 Whether the plaintiff is entitled to eviction orders against the defendant for land reference Smia/Budongo/637.
- 2 Whether the defendant has any lawful right to occupy or fence off the suit land.
Ratio Decidendi
The court found that the plaintiff's evidence of registered ownership was uncontroverted, and the defendant, having failed to defend the suit, had no lawful claim to the land. The plaintiff, as the surviving registered proprietor, is entitled to exclusive possession of his share of the land. The defendant's encroachment was without any colour of right, and due process must be followed for any claim to the property. The court therefore granted the eviction orders as prayed in the plaint, except for mesne profits, for which no evidence was adduced.
Court Disposition
judgment for the plaintiff
Orders
- Eviction order granted against the defendant for land reference Smia/Budongo/637.
- Defendant to meet the costs of the suit.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
CIVIL SUIT 74 OF 2011
MELTUS WANYAMA OBWETE …………………………………………………PLAINTIFF
VERSUS
MAURICE WANDERA NABUYA ………………………………………………..DEFENDANT
J U D G E M E N T
The Plaintiff Meltus Wanyama sues the defendant Maurice Wandera Nabuya for eviction orders fro land reference number Smia/Budongo/637 measuring 2. 0 hectares. The defendant failed to enter appearance or file defence within the period given in the summons.
The plaintiff obtained ex parte judgement on 3. 11. 11 and proceeded to formally prove his case.
The plaintiffs evidence is that he and the late Isaac Omolo are the registered proprietors of the suit premises. A copy of the register shows that the two persons became registered owners on the 27th March 1980. The defendant encroached on the land in the year 2011 and fenced of the land or part thereof.The defendant is a step brother of the late Isaac Omolo and has by passed the closer relatives to grab the land.
The evidence of the plaintiff is uncontroverted that he Is the surviving proprietor of the suit premises entitled to half share of the land. The late Isaac Omolo held one share. He is survived by two sisters. The defendant is a step-brother and has encroached on the land without any colour of right. The defendant chose not to defend the suit. Whatever right he may have, the due process of the law must be followed.
I find that the plaintiff has proved his case against the defendant on the balance of probabilities. The court hereby enters judgement in the plaintiffs favour as prayed in the plaint in terms of prayers (a) and (c). No evidence was adduced for mesne profits and I therefore make no orders in respect of prayer (b). The defendant to meet the costs of the suit.
F.N. MUCHEMI
Judgement dated and delivered on the 28th day of May 2012 in the presence of the plaintiff and his counsel Mr. Situma.
L. KIMARU
J U D G E