[2013] KEHC 1975 (KLR)
The court found that the plaintiff had proved ownership of land parcel Bokoli/Mukuyuni/1633 through documentary evidence, including a sale agreement, official search, and title deed. The defendants, having been served, failed to file any defence or participate in the proceedings. The plaintiff's evidence that the...
Source-derived case information.
- Citation
- [2013] KEHC 1975 (KLR)
- Parties
- Plaintiff: Moses Wanyama Masinde; Defendant: Stephen Bwongo Wafula; Defendant: Gabriel Nyongesa Wafula
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Case 131 of 2012
- Procedural Posture
- Civil Case / Judgment
- Outcome
- plaintiff's suit succeeds; eviction granted; no costs awarded
- Legal Topics
- Eviction, Land Ownership, Trespass, Title Deeds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Wanyama Masinde
Plaintiff
Stephen Bwongo Wafula
Defendant
Gabriel Nyongesa Wafula
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff is the lawful owner of land parcel Bokoli/Mukuyuni/1633.
- 2 Whether the defendants unlawfully encroached and occupied the plaintiff's land.
- 3 Whether the plaintiff is entitled to eviction orders against the defendants.
Ratio Decidendi
The court found that the plaintiff had proved ownership of land parcel Bokoli/Mukuyuni/1633 through documentary evidence, including a sale agreement, official search, and title deed. The defendants, having been served, failed to file any defence or participate in the proceedings. The plaintiff's evidence that the defendants unlawfully entered and occupied the land was unchallenged. The court held that the plaintiff is entitled to exclusive possession of his land and that the defendants' continued occupation amounts to unlawful trespass. Consequently, the court granted eviction orders, allowing the defendants 60 days to vacate, failing which the plaintiff may use lawful means to evict...
Court Disposition
plaintiff's suit succeeds; eviction granted; no costs awarded
Orders
- The defendants are directed to vacate land parcel Bokoli/Mukuyuni/1633 within 60 days from the date of service of this judgment.
- In default, the plaintiff is at liberty to use lawful means to have the defendants evicted from the suit land.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL CASE NO. 131 OF 2012
MOSES WANYAMA MASINDE …...................……............…….. PLAINTIFF
VERSUS
STEPHEN BWONGO WAFULA .................……................1ST DEFENDANT
GABRIEL NYONGESA WAFULA …................................. 2ND DEFENDANT
JUDGMENT
The plaintiff filed the suit against the two defendants seeking;
(a). Eviction from land parcel No. BOKOLI/MUKUYUNI/1653.
(b). Costs
(c). Interest thereon on (a) & (b) at court rates.
(d). Any other relief the court may deem fit to grant.
The plaintiff filed affidavit of service on 29th October 2012. The process server deponed that the defendants were duly served with summons to enter appearance, plaint, statements and documents on 26th September 2012. The plaintiff subsequently requested for Interlocutory judgment on the same date (29. 10. 2012) although the same was not endorsed as an order of the court.
The plaintiff thereafter set the suit down for hearing. On 20th March 2013, a day before the first hearing, Mr. Ateya advocate filed a memorandum of appearance for both defendants. On 21st March 2013, Mr. Juma advocate holding his brief sought an adjournment to allow the defendants to file their papers. The court granted the adjournment and hearing set for 9th May 2013. The defendants were to file their papers before then.
On 9th May 2013, neither the defendants nor their advocates appeared. The suit therefore proceeded ex parte. The plaintiff (hereinafter referred to as PW1) testified. He told court that he purchased 3 acres of land from the father of the defendants which land was to be curved out of L.R. Bokoli/Mukuyuni/1380. In the year 2010, the defendants' father subdivided the land and transferred to him his new portion now comprised in L.R. No. Bokoli/Mukuyuni/1633. He produced a sale agreement, official search and copy of title deed to prove this land belongs to him.
PW1 further said that the defendants' forcibly entered the land in January 2011 and in paragraph 5 of the plaint he avers, “the defendants have unlawfully encroached on the plaintiff's land parcel Bokoli/Mukuyuni/1633 and have erected houses besides ploughing and planting in it food crops to the exclusion of the plaintiff.”This evidence has not been challenged given the defendants did not participate in these proceedings. In the absence of contrary evidence, I have no reason to deny the plaintiff an opportunity to enjoy the use of his land L.R. No. Bokoli/Mukuyuni/1633 as protected by the law.
In the end, the plaintiff's suit therefore succeeds. The defendants are directed to vacate the suit property within 60 days from the date of service of this judgment upon them. In default, the plaintiff is at liberty to use lawful means to have the defendants evicted from the suit land. The plaintiff is not awarded costs as the suit proceeded unopposed.
JUDGMENT DATED and DELIVEREDthis 8thday of October 2013.
A. OMOLLO
JUDGE.