[2024] KEELC 4034 (KLR)
The plaintiff is the registered owner of the suit land, as confirmed by both a previous court judgment (ELC 701/2017) and a Land Registrar's report. The defendants have encroached on the land and failed to establish any lawful claim or respond to the application despite being served and given an opportunity. The...
Source-derived case information.
- Citation
- [2024] KEELC 4034 (KLR)
- Parties
- Plaintiff: Pius Nyabuga Mochoge; Defendant: Daniel Ndinini; Defendant: Rerai Parsitau
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Miscellaneous Case E008 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Amended Notice of Motion for Eviction and Demolition Orders
- Outcome
- Application allowed. Orders granted as prayed in prayers 2, 3, 4, 5, and 6 of the motion.
- Judges
- MN Gicheru
- Legal Topics
- Eviction Orders, Registered Land Ownership, Trespass and Encroachment, Execution of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pius Nyabuga Mochoge
Plaintiff
Daniel Ndinini
Defendant
Rerai Parsitau
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Amended Notice of Motion for Eviction and Demolition Orders
Legal Issues
- 1 Whether the plaintiff, as registered owner, is entitled to eviction orders against the defendants from the suit land.
- 2 Whether the court should order demolition of structures erected by the defendants on the suit land.
- 3 Whether the plaintiff is entitled to enforcement and security for execution of the eviction order.
Ratio Decidendi
The plaintiff is the registered owner of the suit land, as confirmed by both a previous court judgment (ELC 701/2017) and a Land Registrar's report. The defendants have encroached on the land and failed to establish any lawful claim or respond to the application despite being served and given an opportunity. The rights of a registered proprietor under the Land Registration Act are indefeasible except as provided by law, and the plaintiff is entitled to vacant possession. The absence of an eviction prayer in the earlier suit does not bar the present application. The court finds the application meritorious and grants the orders sought to enforce the plaintiff's rights, including eviction,...
Court Disposition
Application allowed. Orders granted as prayed in prayers 2, 3, 4, 5, and 6 of the motion.
Orders
- Eviction order issued against the respondents, their servants, agents, heirs, and dependants from L.R. Kajiado/Loodariak/159.
- Order for demolition of all structures erected on the suit land by the respondents or anyone claiming through them to ensure vacant possession.
Full Case Text
Judgment text and source record
22 paragraphs
Mochoge v Ndinini & another (Environment & Land Miscellaneous Case E008 of 2023) [2024] KEELC 4034 (KLR) (7 May 2024) (Ruling)
Neutral citation: [2024] KEELC 4034 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Miscellaneous Case E008 of 2023
MN Gicheru, J
May 7, 2024
Between
Pius Nyabuga Mochoge
Plaintiff
and
Daniel Ndinini
1st Defendant
Rerai Parsitau
2nd Defendant
Ruling
1. This ruling is on the amended notice of motion dated 19/5/2023. The motion which is brought under Sections 1A, 1B and 3A of the Civil Procedure Act and 152E and G of the Land Act (Act No. 6 of 2012) seeks the following residual orders.2. That this court do issue an eviction order against the respondents, their servants, agents, heirs and dependants from L.R. Kajiado/Loodariak/159, suit land.3. That this court do issue an order for demolition of all structures erected on the suit land by the respondents or anybody claiming through them so as to ensure vacant possession.4. That High Class Auctioneers do effect and execute the above eviction orders.5. That the officer commanding Kisamis Police Station (OCS) be ordered to provide security during the exercise.6. That the costs of this application be borne by the respondents.
2. The motion is based on ten (10) grounds and is supported by an amended supporting affidavit dated 19/5/2023 which has eight (8) annexures. The gist of the above material is as follows.Firstly, the plaintiff is the registered owner of the suit land.Secondly, he is a successful litigant in Kajiado ELC 701/2017 in which the respondents were restrained from trespassing onto the suit land.Thirdly, it has been established through a survey that the respondents have encroached onto the plaintiff’s land.Fourthly, in the plaint in ELC 701/2017 there was no prayer for eviction and that is why the filing of this suit has become necessary.Fifthly, the respondents have been served with an eviction notice on 16/6/2022 which they have not heeded.Finally, the plaintiff cannot enjoy the fruits of his litigation unless the motion is allowed.For the above and other reasons, the applicant prays that the notice of motion dated 19/5/2023 be allowed.
3. The motion, though served is not opposed. On 30/5/2023 Daniel Tauta Ndinini attended court but though given time, did not file any response to the motion.
4. I have carefully considered the motion in its entirety including the grounds, the supporting affidavit and the annexures. I find merit in the motion for the following reasons.
5. Firstly, the applicant is the registered owner of the suit land. This ownership has been confirmed by the court in ELC 701/2017 and by the Land Registrar in the report dated 14/6/2022 which also confirms encroachment on the suit land by the respondents.Secondly, the rights conferred on a registered owner of land under Sections 24 and 25 of the Land Registration Act cannot be defeated by any of the defendants in any way.Thirdly, even though the respondents have been given ample opportunity to lay an lawful claim to the plaintiff’s land, they have failed to do so. I find that the motion is meritorious and I allow it in terms of prayers 2, 3, 4, 5 and 6. It so ordered.
DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 7TH DAY OF MAY 2024. M.N. GICHERUJUDGE