[2017] KEHC 4845 (KLR)
The court found that the plaintiff had proved, on a balance of probabilities, that he was the lawful proprietor of Plot No. 380 United Soy Londiani (formerly Plot No. 59), having purchased it in 1996 and produced a sale agreement as evidence. The defendants failed to provide any credible defence or evidence to...
Source-derived case information.
- Citation
- [2017] KEHC 4845 (KLR)
- Parties
- Plaintiff: Moses Rugut; Defendant: Philip Kipngeno; Defendant: David Mitey Cheruiyot
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 46 of 2013
- Procedural Posture
- Land and Environment Case / Judgment
- Outcome
- Judgment for the plaintiff.
- Judges
- DO Ogal
- Legal Topics
- Ownership Disputes, Injunctions, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Rugut
Plaintiff
Philip Kipngeno
Defendant
David Mitey Cheruiyot
Defendant
Procedural Posture
Land and Environment Case / Judgment
Legal Issues
- 1 Whether the plaintiff is the lawful proprietor of Plot No. 380 United Soy Londiani, formerly Plot No. 59 United Soy Londiani.
- 2 Whether the defendants have trespassed on the plaintiff's land and should be restrained and evicted.
- 3 Whether the absence of a title deed invalidates the plaintiff's proprietary rights.
Ratio Decidendi
The court found that the plaintiff had proved, on a balance of probabilities, that he was the lawful proprietor of Plot No. 380 United Soy Londiani (formerly Plot No. 59), having purchased it in 1996 and produced a sale agreement as evidence. The defendants failed to provide any credible defence or evidence to challenge the plaintiff's claim. The absence of a title deed did not negate the plaintiff's proprietary rights, as the delay in issuance was attributed to internal company issues affecting all purchasers. The court held that the plaintiff was entitled to a declaration of ownership, a permanent injunction restraining the defendants from interfering with the land, and an eviction...
Court Disposition
Judgment for the plaintiff.
Orders
- Declaration that the plaintiff is the lawful proprietor of Plot No. 380 United Soy Londiani, previously Plot No. 59 United Soy Londiani.
- Permanent injunction restraining the defendants from entering, putting up structures, alienating or otherwise interfering with the plaintiff’s enjoyment of his proprietary rights over Plot No. 380 United Soy Londiani.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
ELC CASE NO.46 OF 2013
MOSES RUGUT .................................................................PLAINTIFF
VERSUS
PHILIP KIPNGENO..................................................1ST DEFENDANT
DAVID MITEY CHERUIYOT.....................................2ND DEFENDANT
JUDGMENT
By a Plaint dated 22nd July, 2013 the Plaintiff herein filed suit against the defendant seeking the following reliefs:
a. A declaration that the Plaintiff is the lawful proprietor of Plot no 380 United Soy Londiani, previously plot no, 59 United Soy Londiani.
b. An order of permanent injunction restraining the defendants from entering, putting up structures, alienating or otherwise adversely interfering with the plaintiff’s enjoyment of his absolute and inalienable proprietary rights with respect to all that parcel of land known as plot no. 380 United Soy Londiani situated in Kericho County.
c. An eviction order ejecting the defendants from the plaintiff’s PLOT NO. 380 UNITED SOY LONDIANI formerly Plot No.59 United Soy Londiani.
d. A temporary order in terms of b) above to last pending the hearing of the case.
e. Costs and interest.
Simultaneously with the plaint the plaintiff filed a Notice of Motion seeking a temporary injunction to restrain the defendants from interfering with all that parcel of land known as PLOT NO. 380 UNITED SOY LONDIANI pending the hearing and determination of the main suit.
The order for a temporary injunction was granted on 6th November 2013.
The 1st defendant who appeared in person filed what he perceived to be a defence though it was rather unconventional. The long and short of it is that he stated that the plaintiff obtained the plot irregularly as it was allegedly sold to two people.
When the suit came up for hearing the defendants did not attend even though they had been served with a hearing notice. The suit therefore proceeded as an undefended one.
The plaintiff testified that he bought land parcel number 59 UNITED SOY LONDIANI from United Soy Farmers Ltd in 1996 for Kshs, 38,000. He produced a copy of the sale agreement dated 14th February 1996.
He further testified that it wasn’t until 2007 that he realized that the defendants were trespassing on his plot. He then reported the matter to the chief who issued a written warning to the 1st defendant but this did not deter him. The case was then referred to the D.C who called the relevant stakeholders and it was established that the plot belonged to the plaintiff. He produced minutes of the meeting held at the chief’s office as well as the warning letter issued by the chief. When all these interventions did not yield fruit, he decided to file suit.
The Plaintiff explained that owing to some internal governance issues with United Soy Farmers Ltd, they had not yet issued him with a title deed. He stated that none of the people who had bought plots from this company had been issued with a title deeds.
From the evidence adduced which stands uncontroverted, the plaintiff has demonstrated that he is the lawful proprietor of land parcel number 380 UNITED SOY LONDIANI, formerly known as PLOT NUMBER 59 UNITED SOY LONDIANI. He produced the sale agreement showing that he purchased the plot in 1996 for the sum of Kshs. 38,000. He also demonstrated that he has tried to stop the defendants from trespassing on his land, in vain.
Regarding the title, he explained that the same has not yet been processed by United Soy Farmers Company Ltd and in the absence of any evidence to the contrary, I have no reason to doubt him. I also take judicial notice that sometimes it takes a while to process title deeds after purchase of land.
The upshot of the foregoing is that the plaintiff has proved his case on a balance of probabilities. I therefore enter judgment in his favour as prayed in the plaint and order as follows:
a. That declaration is hereby issued that the Plaintiff is the lawful proprietor of PLOT NO 380 UNITED SOY LONDIANI, previously PLOT NO, 59 UNITED SOY LONDIANI.
b. An order of permanent injunction be and is hereby issued restraining the defendants from entering, putting up structures, alienating or otherwise adversely interfering with the plaintiff’s enjoyment of his absolute and inalienable proprietary rights with respect to all that parcel of land known as plot no. 380 United Soy Londiani situated in Kericho County.
c. An eviction order is hereby issued ejecting the defendants from the plaintiff’s PLOT NO. 380 UNITED SOY LONDIANI formerly Plot No.59 United Soy Londiani within the next 3 months.
The defendant shall pay the costs of this suit.
DATED, SIGNED AND DELIVERED THIS 29TH DAY OF JUNE 2017.
J. M ONYANGO
JUDGE
In the presence of:
1. Miss Kitur for Andama for the Plaintiff.
2. Defendants present in person.