[2014] KEHC 6957 (KLR)
The court found that the plaintiff had established, through documentary evidence, that he is the registered owner of Plot Kwale/Golini 'B' 51. The defendant, having failed to file a defence or provide evidence to the contrary, was found to have unlawfully entered and constructed on the plaintiff's land. The court...
Source-derived case information.
- Citation
- [2014] KEHC 6957 (KLR)
- Parties
- Plaintiff: Omari Sefu Dzila; Defendant: Said Hamad Tengeza
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 231 of 2012
- Procedural Posture
- Civil Case / Judgment After Formal Proof
- Outcome
- Judgment for the plaintiff.
- Judges
- SN Mukunya
- Legal Topics
- Ownership Dispute, Title Registration, Trespass, Permanent Injunction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Omari Sefu Dzila
Plaintiff
Said Hamad Tengeza
Defendant
Procedural Posture
Civil Case / Judgment After Formal Proof
Legal Issues
- 1 Whether the plaintiff is the lawful owner of Plot Kwale/Golini 'B' 51.
- 2 Whether the defendant unlawfully entered and constructed on the plaintiff's land.
- 3 Whether the plaintiff is entitled to a permanent injunction and eviction order against the defendant.
Ratio Decidendi
The court found that the plaintiff had established, through documentary evidence, that he is the registered owner of Plot Kwale/Golini 'B' 51. The defendant, having failed to file a defence or provide evidence to the contrary, was found to have unlawfully entered and constructed on the plaintiff's land. The court held that the plaintiff is entitled to exclusive possession and enjoyment of the land, and that the defendant must vacate within ninety days, failing which eviction may be enforced. A permanent injunction was granted to restrain the defendant from further interference, and costs were awarded to the plaintiff.
Court Disposition
Judgment for the plaintiff.
Orders
- The defendant shall move out and vacate Plot Kwale/Golini 'B' 51 within ninety (90) days, failing which the plaintiff is entitled to forceful eviction.
- A permanent injunction is issued restraining the defendant, his agents, and servants from interfering with the plaintiff's use, possession, and enjoyment of the land.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 231OF 2012
OMARI SEFU DZILA............................. ........................................ PLAINTIFF
- V E R S U S -
SAID HAMAD TENGEZA .............................................................. DEFENDANTS
JUDGMENT
[1] The plaintiff Omar Sefu Dzila filed this suit against Said Hamad Tengeza praying that he be declared the lawful owner and is entitled to exclusive and unimpeded right of possession use and quite enjoyment of Plot Kwale/Golini "B" 57 measuring 2. 6. ha situated at Kwale. He further prays that the defendant do move and vacate from the said plot and a permanent injunction do issue restraining the defendant by himself, his authorized agents and/or servants or otherwise howsoever from trespassing or interfering with the plaintiffs use, possession and quiet enjoyment of the same.
[2] The defendant was served on 26th October 2012 with copies of Summons to enter appearance, Notice of Motion, the Plaint, Plaintiffs affidavit, statement and list of witnesses and a list of documents. He accepted service and signed on the copies filed in court. A memorandum of appearance was entered on his behalf by Mandi & Co. Advocates on 31st October, 2012. He failed to file his defence and a request for judgment was made on 8th May, 2013. The judgment was entered by the Deputy Registrar on 21st May, 2013 and the case was listed for formal proof.
[3] On 1st August, 2013 this matter came up for formal proof. Omari Sefu Dzila the plaintiff told the court that he got land Kwale/Golini/'B' 51 from his father. the land was converted into a settlement scheme and that he was later given a letter of allotment on 20th August, 1981. He produced the allotment as PEXH. 1. He said he paid Kshs. 525 on 15th February 1989 produced it as Exhibit 2. He was issued with a Title Deed on 15th March, 1987. He produced a certificate of outright purchase as Exh. 3. He also produced a letter of 17th September, 1996 and a payment of Kshs. 395. He stated that he was shown the land after paying Kshs. 2,000 for survey and legal fees. He produced the receipts for such payments. The title deed in the plaintiff's name was produced as PExh. No. 6.
He said that he had come to court because the defendant had entered his land and put building stones on the land on 17th October 2012. The Plaintiff stated that he instructed his lawyer to send a demand notice to the defendant who has continued to build on his land and that the house is now complete. He exhibited photographs of the house constructed by the defendant on his land. They were produced as PExh. 9.
[4] The defendant stated that he knows the defendants land which he claimed is Kwale/Golini B/55. He annexed a photocopy of the Deed Plan showing their plots. The same was marked as PExh. 10. He produced a search certificate from the land office showing that the land is registered in his name. He stated that the defendant was not his neighbour and that the plaintiffs neighbour is the defendants mother one Twahia Mbongi. He pleaded with the Court to allow his prayers as set out in the plaint and order that the defendant do move out and vacate his land.
[5] Having heard the evidence of the plaintiff and having also perused all the documents of the plaintiff, I am satisfied that the suit land truly belongs and is registered in the name of the plaintiff. I am equally satisfied and convinced that the defendant entered the suit land without any colour of right and started to erect a house thereon. That he was given notice not to do so but he ignored and proceeded with his construction. I declare that the land KWALE/GOLINI "B" 51 belongs to the plaintiff. The defendant herein should move out and vacate therefrom within ninety (90) days failing which the plaintiff shall have the right to forcefully evict him therefrom.
The Court issues a permanent injunction restraining the defendant by himself, his authorized agents and servants from interfering in anyway with the plaintiff's use possession and quiet enjoyment of Land Parcel Kwale/Golini 'B' 51 measuring approximately 2. 6. ha.
The plaintiff shall have the costs of this suit.
Dated and delivered in open Court at Mombasa this 14th day of February, 2014.
S.N. MUKUNYA
JUDGE
14. 2.2014
In the presence of:
Hamza Advocate for Waithera advocae for the Plaintiff
Mandi Advocate for the respondents