[2018] KEELC 4158 (KLR)
The court found that the plaintiff is the registered owner of the suit property and that the defendant failed to provide sufficient evidence to support his claim of entitlement to the land, either through purchase by his father or by adverse possession. The agreement relied upon by the defendant did not describe the...
Source-derived case information.
- Citation
- [2018] KEELC 4158 (KLR)
- Parties
- Plaintiff: Peter Gatihuri Karingu; Defendant: Stephen Gathuku Inyanjui; Defendant: The Assistant County Commissioner (Ngenda Ward)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1513 of 2016
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Judgment for the plaintiff; eviction order granted; restriction to be removed; costs to the first defendant.
- Legal Topics
- Eviction, Removal of Caution, Adverse Possession, Title Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Gatihuri Karingu
Plaintiff
Stephen Gathuku Inyanjui
Defendant
The Assistant County Commissioner (Ngenda Ward)
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the defendant has a right to occupy the suit property.
- 2 Whether the restriction registered against the title should be removed.
Ratio Decidendi
The court found that the plaintiff is the registered owner of the suit property and that the defendant failed to provide sufficient evidence to support his claim of entitlement to the land, either through purchase by his father or by adverse possession. The agreement relied upon by the defendant did not describe the suit property, and there was no evidence linking the plaintiff to the alleged transaction. The restriction placed on the title by the Assistant County Commissioner was not supported by any reasons or evidence. Therefore, the plaintiff proved his case on a balance of probabilities and was entitled to eviction of the defendant and removal of the restriction.
Court Disposition
Judgment for the plaintiff; eviction order granted; restriction to be removed; costs to the first defendant.
Orders
- The first defendant shall be evicted from LR No. Ngenda/Mutomo/T.225.
- The restriction registered on LR No. Ngenda/Mutomo/T.225 shall be removed forthwith.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
MILIMANI LAW COURTS
ELC NO. 1513 OF 2016
PETER GATIHURI KARINGU...............................................PLAINTIFF
=VERSUS=
STEPHEN GATHUKU INYANJUI..............................1ST DEFENDANT
THE ASSISTANT COUNTY
COMMISSIONER ( NGENDA WARD)....................2ND DEFENDANT
JUDGEMENT
1. The plaintiff is the registered owner of LR No. Ngenda/ Mutomo/T.225. He filed this suit against the defendant in which he sees orders of eviction and removal of a caution which was lodged against the title by the defendant.
2. The plaintiff states that the defendant trespassed into the suit property and created structures on it. The plaintiff has tried to ask the defendant to move out of the suit property to no avail. This is why he filed this case.
3. The defendant testified that the suit property was purchased by his father in 1964 from one Nicholas Kiminda who was an assistant Chief. The defendant was initially staying with his father at Kahawa Garrison. He moved into the suit property with his father who later moved to Nakuru as the suit property was small.
4. The defendant married in 1974 while still in the suit property. He still lives there to date. He does zero grazing on the quarter acre plot.
5. I have considered the evidence adduced by the plaintiff and the defendant. There is no contention that the defendant is staying on the suit property. The issues which are for determination is whether the defendant has a right to be on the suit property and whether the restriction registered against the title should be removed.
6. Title to the suit property was issued to the plaintiff on 10. 11. 2010. The official search shows that a restriction was registered against the title on 27. 9.2016 at the instance of the Assistance County Commissioner through letter dated 26. 9.2016.
7. The defendant filed his documents which show that he filed an originating summons in Kiambu High Court on 30. 11. 2016 in which he seeks to have the suit property by way of adverse possession. He also filed a transaction of an agreement in Kikuyu language which shows that one Kinyanjui son of Mwaura bought a plot from Nicholas Kiminda son of Kamau for Kshs.450/= on 30. 10. 1964. The plot is not described in the agreement.
8. The plaintiff has demonstrated that he is the registered owner of the suit property. The defendant did not call any evidence to confirm his allegations on why he is on the suit property. If his father bought land from Nicholas Kiminda he cannot claim land from the plaintiff who is not the said Nicholas Kiminda. A certificate of title shall be taken as prima facie evidence of ownership of a property. I did not have the benefit of seeing the letter of 26. 9.2016 by the Assistant County Commissioner to see the reasons why he had to cause a restriction to be registered against the title.
9. In the absence of any reasons why the restriction was registered and in view of the fact the plaintiff is the registered owner of the suit property, I find that the plaintiff has proved his case on a balance of probabilities. I enter judgement for him against the first defendant for eviction from LR No. Ngenda/Mutomo/ T.225. The restriction which was registered on LR No. Ngenda/Mutomo/T.225 should be removed forthwith. Costs of this suit to be borne by the first defendant.
Dated, Signed and delivered at Nairobi on this5thday of February ,2018.
E.O.OBAGA
JUDGE
In the presence of :
…………………………..
Court Assistant : Hilda
E.O.OBAGA
JUDGE