[2017] KEELC 667 (KLR)
The court found that the plaintiff had proved, on a balance of probabilities, that he is the registered proprietor of the suit land, having produced the original grant, deed plan, official search, allocation minutes, and receipts for rates. The defendants, having been duly served, failed to respond or appear, and...
Source-derived case information.
- Citation
- [2017] KEELC 667 (KLR)
- Parties
- Plaintiff: Peter Mochere Mabira; Defendant: Francis Kibet; Defendant: Carolyne Chevich alias Cheruto
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 100 of 2016
- Procedural Posture
- Land Case / Judgment After Formal Proof
- Outcome
- Judgment for the plaintiff; eviction and permanent injunction granted; mesne profits denied; costs and interest on costs awarded.
- Judges
- FM Njoroge
- Legal Topics
- Title Registration, Eviction, Permanent Injunction, Trespass, Mesne Profits, Allocation of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peter Mochere Mabira
Plaintiff
Francis Kibet
Defendant
Carolyne Chevich alias Cheruto
Defendant
Procedural Posture
Land Case / Judgment After Formal Proof
Legal Issues
- 1 Whether the plaintiff is the lawful registered proprietor of the suit land.
- 2 Whether the defendants unlawfully entered and occupied the suit land.
- 3 Whether the plaintiff is entitled to eviction orders and a permanent injunction against the defendants.
Ratio Decidendi
The court found that the plaintiff had proved, on a balance of probabilities, that he is the registered proprietor of the suit land, having produced the original grant, deed plan, official search, allocation minutes, and receipts for rates. The defendants, having been duly served, failed to respond or appear, and the evidence of their unlawful occupation and erection of illegal structures was uncontroverted. The court held that the plaintiff is entitled to eviction orders and a permanent injunction to protect his proprietary rights. However, the claim for mesne profits was denied as it was not specifically proved. The plaintiff was awarded costs and interest on costs.
Court Disposition
Judgment for the plaintiff; eviction and permanent injunction granted; mesne profits denied; costs and interest on costs awarded.
Orders
- Defendants, their agents, tenants or anyone claiming through them to be evicted from the suit land.
- A permanent injunction restraining the defendants and others claiming under them from trespassing or interfering with the plaintiff’s quiet possession of the suit premises is granted.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 100 OF 2016
PETER MOCHERE MABIRA.........................................PLAINTIFF
VERSUS
FRANCIS KIBET
CAROLYNE CHEVICH alias CHERUTO...............DEFENDANTS
JUDGMENT
1. The plaintiff’s suit proceeded to formal proof on 11/10/2017 as the defendant failed to respond to service of summons and plaint. The affidavit of service of Concephter Oduor, a process server dated 15/7/2016 shows that the defendants were served on 14/7/2016.
2. The plaintiff’s case is that at all material times he was the registered owner of Land Title Number Kitale Municipality No. 2116/352measuring0. 0465 Ha. being leasehold interest from the Government of Kenya for a period of 99 years with effect from 1/6/1981. The plaintiff avers that he was procedurally allocated the plot following an application which he made to the Commissioner of Lands in 1979. He thereafter paid all the dues required of him in respect of the plot and he eventually became registered as proprietor on 13/10/1981. He was issued with a Certificate of Lease. He has continued paying the statutory dues to the National Government and the County Government.
3. However the defendants have according to the plaintiff invaded the suit premises and erected illegal structures which they have leased out partly to third parties. They have continued to occupy some of those structures and, despite demand, they have neglected to vacate the premises. The plaintiff therefore seeks an order that the defendants, their agents, tenants or anyone claiming through them to be evicted from the suit land.
4. He also seeks that a permanent injunction do issue to restrain the defendants and others claiming under them from trespassing or interfering with the plaintiff’s quite possession of the suit premises, mesne profits, costs of the suit and interest on mesne profits and costs.
5. The plaintiff alone testified in his case and adopted his written statement in the record. He reiterated the contents of the plaint. He produced documents in proof of his claim. Among these were the Original Grant No. I.R. 35859 in respect of LR. No.2116/352, with a copy of Deed Plan attached, registered on 13/10/1981. He also produced a copy of the Official Search which showed that as at 13/10/2017 the suit premises were still registered in his name. The copy of Minutes of the Plot Allocation Committee for the meeting held on Friday 2/3/1979 was also produced. ”P. Exhibit 5(a)”, “P. Exhibit 5(b)”and“P. Exhibit 5(c)”are receipts showing that the plaintiff pays rates to the County Government of Trans-Nzoia in respect of the suitland.
6. After perusal of the documentary evidence produced by the plaintiff, and considering the plaintiff’s oral evidence as well as the contents of the plaint, I am satisfied that he has proved his claim against the defendants on a balance of probabilities. His claim therefore succeeds.
7. I therefore enter judgment in favour of the plaintiff against the defendants jointly and severally and I grant prayers Nos. (a) (b)and(d). Mesne profits are denied as they were not proved. The plaintiff shall however have interest on costs.
It is so ordered.
Dated, signed and delivered at Kitale on this 20th day of December, 2017.
MWANGI NJOROGE
JUDGE
20/12/2017
Before - Mwangi Njoroge -Judge
Court Assistant - Isabellah
Ms. Mwemeke holding brief for Samba for plaintiff
N/A for the defendant
COURT
Judgment read in open court.
MWANGI NJORoGE
JUDGE
20/12/2017