[2004] KEHC 856 (KLR)
The court found that the plaintiff's ownership of the land was established by the decisions of the land adjudication committee and the Minister on appeal, both of which awarded the land to the plaintiff. The defendant, having failed to vacate the land despite official orders and not presenting any evidence or...
Source-derived case information.
- Citation
- [2004] KEHC 856 (KLR)
- Parties
- Plaintiff: Pitalis Oswago Obunga; Defendant: Ogola Apiyo
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 44 of 1999
- Procedural Posture
- Civil Case / Judgment
- Outcome
- judgment for the plaintiff
- Legal Topics
- Ownership Disputes, Eviction, Special Damages, Mesne Profits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pitalis Oswago Obunga
Plaintiff
Ogola Apiyo
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff is the rightful owner of land parcel KANYAMWA/KAYAMBO-KWAMO/1160.
- 2 Whether the defendant should be evicted from the suit land.
- 3 Whether the plaintiff is entitled to special damages and mesne profits.
Ratio Decidendi
The court found that the plaintiff's ownership of the land was established by the decisions of the land adjudication committee and the Minister on appeal, both of which awarded the land to the plaintiff. The defendant, having failed to vacate the land despite official orders and not presenting any evidence or contesting the plaintiff's claims, left the plaintiff's evidence unchallenged. The court held that the plaintiff had proved his case on a balance of probabilities and was entitled to a declaration of ownership, eviction of the defendant, and special damages as proved. The claim for mesne profits was denied due to lack of evidence on the quantum of profits derived by the defendant...
Court Disposition
judgment for the plaintiff
Orders
- Declaration that the plaintiff is the owner of land parcel KANYAMWA/KAYAMBO-KWAMO/1160.
- Order for eviction of the defendant, his servants and/or agents from the land.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII CIVIL CASE NO.44 OF 1999
PITALIS OSWAGO OBUNGA …………………………………………. PLAINTIFF
VERSUS
OGOLA APIYO ………………………………………………………. DEFENDANT
JUDGMENT:
Plaintiff’s claim is for a declaration that he is the owner of land No.KANYAMWA/KAYAMBO-KWAMO/1160. He further prays for an order to evict the defendant, his servants and or agents from the land. He further claims shs.49,335/= special damages and also claims for general damages, mesne profits, profits prendre, costs and interest.
The defendant filed a defence but on the hearing date failed to turn up. Interlocutory judgment was entered on 25th September 2003. On 13th October 2003 the plaintiff gave evidence before Justice Wambilyangah who fixed judgment on 27th October. However by then he had left service.
Plaintiff told court that the defendant is occupying his land Kanyamo/Kayambo- Kwamo/1160. They had a dispute before the land adjudication committee in 1970 and the decision was in his favour. Defendant appealed to the Minister who ruled in the plaintiff’s favour. That was in 1998. The D.C. Homa Bay wrote to him to vacate the land. He did not do so. He burned trees in the land.
As I said the defendant did not call any evidence. The evidence of the plaintiff is clear and unchallenged.
The adjudication committee heard dispute between the two parties and awarded the land to the plaintiff. This decision was confirmed by the Minister on appeal. There is therefore no dispute the land is his.
Plaintiff said defendant stay in the land. His son has erected a house on the land. He should therefore leave the land.
Plaintiff claimed special damages of shs.49,335/=. However in his evidence he only talked of shs.32,065/=. I award him that amount.
As for mesne profits plaintiff did not attempt to show how much the defendant was getting from the land. It will therefore be difficult for the court to award mesne profits. From the above I find plaintiff has proved his case and I enter judgment for him in terms of prayers (a), (b), (c) – (32,065/=) (g) and (e).
It is so ordered.
Dated at Kisii on 29th July 2004.
KABURU BAUNI
JUDGE
29/7/04 Mr. Ogari holding brief for Mr. Okoth for plaintiff. N/A for defendant.
KABURU BAUNI
JUDGE
29/7/04