[2019] KEELC 4838 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 57 OF 2012

PAUL KIPROTICH RUTTOH...................................1ST PLAINTIFF

MILKA SOTE..............................................................2ND PLAINTIFF

RACHEL CHESIRE....................................................3RD PLAINTIFF

SOPHIE SOTE CHEPKWONY..................................4TH PLAINTIFF

IRENE CHESIRE........................................................5TH PLAINTIFF

STELLAH TURERE SOTE........................................6TH PLAINTIFF

WINNIE KEMEI..........................................................7TH PLAINTIFF

VERSUS

ABRAHIM NAIBEI CHESUMBAI.........................1ST DEFENDANT

SOLOMON BICHANGA MOFFAT NDEGE........2ND DEFENDANT

JOSPHAT WANGILA WANYONYI......................3RD DEFENDANT

JOHN K. CHERUIYOT...........................................4TH DEFENDANT

WILSON KORIR......................................................5TH DEFENDANT

SILAS KEREMET BUKAN....................................6TH DEFENDANT

WILLIAM KIPKEMOI CHEPKWONY................7TH DEFENDANT

ROBINSON SAKATEKO NYASIMI.....................8TH DEFENDANT

JOHN KEMBOI CHEMAGET...............................9TH DEFENDANT

JUDGMENT

1. In the plaint dated 11/4/2012 that was filed on 18/4/2012, the plaintiffs seek the following orders:-

(a) An order of permanent injunction to restrain the defendants by themselves, their servants and or agents from entering, taking possession, trespassing on all those properties known as Title Numbers Kimondo/Kimondo Block 1(Chepsalei) 5, Kimondo/Kimondo Block 1 (Chepsalei) 6 and Kimondo/Kimondo Block 1(Chepsalei) 7, and or from harassing, evicting and or threatening the plaintiffs agents, employees and or from allowing their livestock to graze on the plaintiffs said parcel of land and or carrying out farming activities in the said parcels of land and or in any manner howsoever interfering with the plaintiffs exclusive ownership, use and possession of the said parcels of land.

(b) An order of mandatory injunction compelling the defendants by themselves, their servants and or agents to forthwith vacate the said parcel of land and to remove all their equipment and or personal effects dumped and or stored in the plaintiffs parcels of land known as Kimondo/Kimondo Block 1(Chepsalei) 5, Kimondo/Kimondo Block 1 (Chepsalei) 6 and Kimondo/Kimondo Block 1(Chepsalei) 7.

(c) Interim orders in respect of prayer (a) and (b) above.

(d) Costs of the suit.

(f) Such further order which the court may deems fit to grant.

2. According to the plaint, the plaintiffs’ case is that the 2nd to 7th plaintiffs were beneficiaries of the suit land; that vide an agreement dated 15/12/2010 between the 1st plaintiff and the 2nd - 7th plaintiffs the plaintiff bought88 acres of land to be carved out of the suit properties at a consideration of 13,200,000/=; that he paid a deposit of Ksh 3,000,000/=; that the balance was to be paid upon successful survey and registration of the suit property in favour of the 1st plaintiff; that the property was bought in vacant possession; that a condition in the agreement required the plaintiff to take and remain in possession pending completion of the transfer and he did take possession; that however, without any proprietary interest in the suit land on their part, the defendants trespassed on the suit land between the years 2010 and 2011 and forcefully occupied a portion thereof, subdivided and started farming on the said portion and have wrongfully remained thereon despite demand; that the plaintiff has suffered loss and inconvenience hence the suit.

3. That according to the affidavit of service dated 22/6/2012 filed in court on 15/3/2013, the 2nd, 6th, 8th and 9th defendants were served personally. Later, following an order for substituted service, the 1st, 3rd, 4th, 5th and 7th defendants were served by way of an advertisement which appeared in a copy of a local daily published on 8/8/2013.

4. The defendants in this suit, despite being served with summons, plaint and verifying affidavit, never entered appearance or filed any defence.

5. A written request for judgment against the 1st 3rd, 4th 5th and 7th defendants dated 30/9/2013 was filed on 4/10/2013. Another request for judgment against the 1st 3rd, 4th 5th and 7th defendants dated 24/7/2018 was filed on 9/8/2018.

6. On 31/10/2018 the plaintiff’s counsel applied for an order that interlocutory judgment be entered against the defendants for failure to enter appearance and defence. Judgment was entered against the defendants on the same date and the matter was ordered to proceed to formal proof. The suit proceeded ex-parte against them.

7. At the hearing which took place on 15/11/2018, Winnie Kemei, the 7th plaintiff, testified as PW1and adopted her written statement filed in court on the15th November 2018. She stated that the suit land belonged to her late father whose estate she was an administrator pursuant to a Grant of Letters issued in Nakuru High Court Succession Cause No 1 Of 2007; that vide a Certificate of Confirmation of grant dated 2/12/2009 she and 2nd to 6th plaintiffs were vested with the land and that in 2010 they sold 88acres out of the suit property to the 1st plaintiff who paid a deposit and took possession of the suit land. According to her the defendants trespassed onto the suit property sometime between 2010and2011. The plaintiffs had had no dealings with the defendants over the suit land. She produced an original Rectified Certificate of Grant dated in Nakuru High Court Succession Cause No 1 of 2007.

8. PW2 Paul Rotich Rutto, the1st plaintiff, testified on 21/11/2018. He adopted his statement filed in court record dated 14/12/2011 as his evidence-in-chief. That statement reiterates the matters pleaded in the plaint. He produced the agreement for sale dated 15/12/2010 and a valuation report apparently prepared in November 2018 in evidence.

9. The rectified certificate of confirmation of grant dated 1/9/2016 shows that the 2nd to 7th plaintiffs are beneficiaries to the suit land, entitled to an aggregate of 120 acres. The copies of titles to the suit properties show that the suit land measure 99. 93 ha in aggregate, translating into 246. 9 acres.

10. This suit is not opposed. I have examined the documentary evidence produced by the plaintiffs and heard their evidence. In my view the plaintiffs have established their case against the defendants on a balance of probabilities.

11. Consequently I hereby enter judgment in favour of the plaintiffs against the defendants jointly and severally and issue the following orders:

(a) An order of permanent injunction to restrain the defendants by themselves, their servants and or agents from entering, taking possession, trespassing on all those properties known as Title Numbers Kimondo/Kimondo Block 1(Chepsalei) 5, Kimondo/Kimondo Block 1 (Chepsalei) 6 and Kimondo/Kimondo Block 1(Chepsalei) 7, and or from harassing, evicting and or threatening the plaintiffs agents, employees and or from allowing their livestock to graze on the plaintiffs said parcels of land and or carrying out farming activities in the said parcels of land and or in any manner howsoever interfering with the plaintiffs exclusive ownership, use and possession of the said parcels of land.

(b) An order of mandatory injunction compelling the defendants by themselves, their servants and or agents to forthwith vacate the said parcels of land and to remove all their equipment and or personal effects dumped and or stored in the plaintiffs parcels of land known as Kimondo/Kimondo Block 1(Chepsalei) 5, Kimondo/Kimondo Block 1 (Chepsalei) 6 and Kimondo/Kimondo Block 1(Chepsalei) 7.

(c) The defendants shall bear the costs of the suit.

Dated, signed and delivered at Kitale on this 29th day of January, 2019.

MWANGI NJOROGE

JUDGE

29/01/2019

Coram:

Before - Hon. Mwangi Njoroge, Judge

Court Assistant - Picoty

Mr. Bungei holding brief for Tororey for plaintiffs

N/A for the defendants

COURT

Judgment read in open court.

MWANGI NJOROGE

JUDGE

29/01/2019