[2009] KEHC 2215 (KLR)
The court found that the plaintiff had proved, on a balance of probabilities, that she is the sole proprietor of parcel No. Kakamega/Kongoni/2017, as evidenced by the title deed and green card. The defendant had no proprietary interest in the land and was deemed a mere licensee. The defendant's unauthorized sale of...
Source-derived case information.
- Citation
- [2009] KEHC 2215 (KLR)
- Parties
- Plaintiff: Peris Osengo Oyoko; Defendant: James Ambula Oyoko
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Case 80 of 2007
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the plaintiff. Eviction order granted against the defendant. Costs and interest awarded to the plaintiff.
- Judges
- CA Ombija
- Legal Topics
- Ownership Dispute, Eviction, Fraudulent Transfer, Proprietary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peris Osengo Oyoko
Plaintiff
James Ambula Oyoko
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff is the sole proprietor of parcel No. Kakamega/Kongoni/2017.
- 2 Whether the defendant has any proprietary rights over the subject land.
- 3 Whether the defendant's actions constitute fraud and warrant eviction.
Ratio Decidendi
The court found that the plaintiff had proved, on a balance of probabilities, that she is the sole proprietor of parcel No. Kakamega/Kongoni/2017, as evidenced by the title deed and green card. The defendant had no proprietary interest in the land and was deemed a mere licensee. The defendant's unauthorized sale of portions of the land to third parties constituted acts of fraud, theft, and nuisance. Consequently, the court ordered the eviction of the defendant from the land, awarded costs to the plaintiff, and granted interest at court rates.
Court Disposition
Judgment for the plaintiff. Eviction order granted against the defendant. Costs and interest awarded to the plaintiff.
Orders
- Eviction of the defendant from land parcel No. Kakamega/Kongoni/20067.
- Plaintiff awarded costs of the suit.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITALE
Civil Case 80 of 2007
PERIS OSENGO OYOKO:::::::::::::::::::::::::::::PLAINTIFF
VERSUS
JAMES AMBULA OYOKO::::::::::::::::::::::::::DEFENDANT
J U D G M E N T
By a plaint dated 11th May, 2007 the plaintiff sought orders:-
(a) A declaration that the parcel No. Kakamega/Kongoni/2017 measuring 11. 73 hectares solely belongs to the plaintiff.
(b) An order of eviction of the defendant from parcel No. Kakamega/Kongoni/20067.
(c) An order that the defendant be ordered to move to the farm at Bunyore.
(d) Costs
(e) Any other relief the honourable court may deem fit to grant.
The plaintiff testified, on oath, that she is the proprietor of land parcel Kakamega/Kongoni/2017 measuring 11. 73 hectares or thereabouts. That she does not hold it in trust for any person including the defendant.
That the defendant has without any colour of right, authority and/or consent resorted to selling piecemeal parts of the subject parcel to third parties. Such acts constitute fraud and obtaining by false pretence.
It is the plaintiff’s case that the defendant has absolutely no proprietory rights over the subject land which he could pass over to the said third parties - Nemo dat qui non habet. As evidence of ownership she produced a title deed for the subject parcel exhibited as P1. In further support of her claim she produced a green card issued by the Land Registrar exhibited as P2.
It was her last and final position that notwithstanding her proprietory interest the defendant filed Eldoret CMCC No. 104/2007 - James Ambula Oyoko –vs- Peris Osengo Oyoko - to vex the plaintiff. She thus prayed for an order of eviction.
On the evidence, I find as a matter of law that the defendant has no proprietory interest in the subject parcel. In deed he is a licencee of the plaintiff. Further the defendant’s acts constitute acts of fraud, theft and nuisance as against the plaintiff.
In the result, I find as a matter of law that the plaintiff has proved her case against the defendant on a balance of probability. Accordingly there shall be orders:
(a) Of eviction from land parcel No. Kakamega/Kongoni/20067.
(b) Of costs
( c) Of interest at court rates.
It is so ordered.
Dated and delivered at Kitale this 25th day of MAY 2009.
N.R.O. OMBIJA
JUDGE