[2019] KEELC 3627 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAKURU

CASE No. 219 OF 2014

PATRICK MAINA MATHENGE...................... PLAINTIFF

VERSUS

JOHN WANJAU........................................... 1ST DEFENDANT

STANLEY KIPRONO KWAMBAI............2ND DEFENDANT

COUNTY GOVERNMENT OF NAKURU – GILGIL

SUB-COUNTY..............................................3RD DEFENDANT

JUDGMENT

1. By plaint filed on 25th July 2014, the plaintiff averred that he is the owner of a parcel of land known as “Plot No. 12 – residential 5KA Gilgil registered in the name of Jane Chepkosgei which he legitimately purchased from Mr Tanui.” He further averred that the 1st and 2nd defendants trespassed on the plot while the 3rd defendant failed to resolve the dispute between the parties.

2. The plaintiff therefore sought judgment against the defendants as follows:

a) An eviction and a demolition order be issued against the 1st and 2nd defendant (sic) to remove them, their agents, their servants and other related workers and to demolish all such buildings, fences and structures erected by the defendants (sic) Plot No. 12 – residential 5KA Gilgil and permanent injunction restraining the defendant (sic) by themselves, agents and or servants from selling, demolishing any fence, disposing and transferring or in any manner of whatsoever the nature dealings with (sic) Plot No. 12 – residential 5KA Gilgil.

b) Costs of this case be borne by the defendants.

3. Despite being served with Summons to Enter Appearance, the 1st and 2nd defendants neither entered appearance nor filed defence. They did not participate in the hearing either. On its part, the 3rd defendant filed a defence in which it generally denied the allegations made by the plaintiff and stated that according to its records, the suit property is in the names of Jane Chepkosgei and that no transfer or application to transfer to any other person has been made to it. In conclusion, it urged that the case against it be dismissed with costs.

4. At the hearing, the plaintiff testified as PW1. He stated that the 1st defendant is his neighbour and that he knows him. He also knows the 2nd defendant. He added that the 2nd defendant is occupying his (plaintiff’s) plot No. 12 – residential 5KA Gilgil. Sometime back, he was informed by clerk to Nakuru County Council that there was a plot on sale which belonged to his wife one Jane Chepkosgei. He purchased it on 22nd November 2002 through a handwritten agreement dated that date (PExb 1). Ms Chepkosgei handed to him an allotment letter signed by acting clerk of County Council of Nakuru (PExb 2). The plaintiff took possession immediately, fenced the plot and started farming. However, in the year 2003 the 1st defendant went to the plot and demolished the fence and destroyed the plaintiff’s crops. The 1st defendant claimed that the plot had been sold to him by someone else.

5. The plaintiff wrote a complaint letter dated 3rd March 2004 (PExb 3) to the County Council of Nakuru. In the letter, he explained that he bought the plot from one Mr Tanui some two years prior to the date of the letter. Before then, Tanui had resolved an ownership dispute between himself and a Mr Ogolla with the result that Ogolla admitted that the plot belonged to Tanui. Since Ogolla had sold the plot to the 1st defendant, Ogolla agreed to look for an alternative plot for the 1st defendant. The council responded by summoning the plaintiff, the 1st defendant, Ogolla, Tanui and Chepkosgei through several letters (PExb 4) to attend various meetings. Ogolla wrote a letter dated 30th April 2004 to the County Council (PExb 5) stating that the 1st defendant had been given an alternative plot being plot No. 40 at Gilgil Kambi Somali. Subsequently, the County Council wrote to 1st defendant on 31st May 2005 (PExb 6A) asking him to vacate. Since he did not comply, another letter was written to him on 21st February 2006 (PExb 6B). He still did not comply.

6. The plaintiff further stated that later in the year 2014, the 2nd defendant arrived and deposited construction material on the plot. Once again, the plaintiff raised a complaint with the county council. Subsequently, the county council issued a letter (PExb 7) stating that the plot belonged to Jane Chepkosgei. The County Council did not evict the 1st and 2nd defendants. Owing to the dispute, the pay rates. He had also lodged documents for the plot to be transferred to him but he was told to wait for the dispute to be determined before transfer could be effected.

7. Under cross-examination by counsel for the 3rd defendant, the plaintiff stated that he seeks no orders against the 3rd defendant since it has not wronged him. The 3rd defendant resolved all disputes in his favour. He only joined the 3rd defendant so that it could come to court and clarify if the property belongs to him.

8. The plaintiff’s case was closed at that point. The 3rd defendant also closed its case without tendering any evidence. Parties were then ordered to file and exchange written submissions. The order was duly served upon the 1st and 2nd defendants. The plaintiff filed submissions on 22nd March 2018 while the 3rd defendant filed submissions on 18th May 2018. The 1st and 2nd defendants did not file any submissions. The plaintiff argued that he had proven his case. He urged the court to grant him the orders sought. The 3rd defendant argued that no case had been established against it and urged the court to dismiss the claim against it with costs.

9. I have carefully considered the pleadings, the evidence and the submissions in this matter. Three issues emerge for determination; firstly, whether the plaintiff has established an interest over the suit property; secondly, whether the 1st and 2nd defendants trespassed onto the suit property and finally, whether the plaintiff is entitled to the relief sought.

10. The plaintiff’s case against the 1st and 2nd defendants is unchallenged. From the material placed before the court, it is apparent that pursuant to letter issued following a meeting of the Nakuru County Council District Plots Allocation Committee held on 10th June 1997, the suit property was allocated to Jane Chepkosgei. Her ownership was later confirmed by the 3rd defendant though its letter dated 30th June 2014. She later sold the plot to the plaintiff on 22nd November 2002 as is witnessed by the hand written sale agreement of that date. The plaintiff has satisfactorily explained that transfer in his favour has not been registered with the 3rd defendant owing to the intervening disputes. I am therefore satisfied that the plaintiff has established sufficient proprietary interest over the suit property.

11. The second issue for determination is whether the 1st and 2nd defendants trespassed onto the suit property. The plaintiff gave uncontroverted evidence that the 1st defendant went to the suit property in the year 2003, demolished the fence and destroyed the plaintiff’s crops. Further that the 2nd defendant deposited construction material on the suit property in the year 2014 and that the 2nd defendant was still occupying the property as at the date of the hearing. All this is corroborated by the 3rd defendant’s letters dated 31st May 2005, 21st February 2006 and 30th June 2014. I therefore find and hold that the 1st and 2nd defendants trespassed onto the suit property.

12. The reliefs sought are adumbrated at the paragraph of this judgment. In view of the foregoing, I am satisfied that the plaintiff has proven his case as against the 1st and 2nd defendants on a balance of probabilities. As regards the 3rd defendant, the plaintiff himself testified that he seeks no relief against it. Although he explained that he joined the 3rd defendant so that it could come to court and clarify that the property belongs to him, no explanation has been offered as to why that effect could not be achieved by summoning a witness from the 3rd defendant to testify.

13. In the end, I make the following orders:

a) The plaintiff’s case against the 3rd defendant is dismissed with costs to the 3rd defendant.

b) I order the 1st and 2nd defendants, their agents and servants to vacate and to demolish all buildings, fences and structures erected by them on Plot No. 12 – residential 5KA Gilgil within thirty (30) days from the date of delivery of this judgment.

c) In default, the 1st and 2nd defendants, their agents and servants be evicted from Plot No. 12 – residential 5KA Gilgil and all buildings, fences and structures erected by them on Plot No. 12 – residential 5KA Gilgil be demolished. The eviction and demolition to be done in accordance with the provisions of section 152G (1) (d) to (h) of the Land Act, 2012.

d) A permanent injunction is hereby issued restraining the 1st and 2nd defendants by themselves, their agents and or servants from selling, disposing and transferring or in any manner whatsoever interfering with Plot No. 12 – residential 5KA Gilgil save as ordered under (b) above.

e) The plaintiff is awarded costs of this suit as against the 1st and 2nd defendants.

14. This judgment was initially scheduled for delivery on 24th January 2019. Delay in its delivery, which was occasioned by the fact that I proceeded on medical leave, is regretted.

Dated, signed and delivered in open court at Nakuru this 30th day of April 2019.

D. O. OHUNGO

JUDGE

In the presence of:

Counsel for the plaintiff absent

Plaintiff present in person

No appearance for the 1st defendant

No appearance for the 2nd defendant

No appearance for the 3rd defendant

Court Assistants: Beatrice & Lotkomoi