[2019] KEELC 2179 (KLR)
The court found that the Plaintiff, as the legal representative of the estate of Masai Kabolelya, had established that the suit property (parcel No. 1247) was allocated to the deceased during the Land Adjudication process, as evidenced by a letter from the Land Adjudication Office. The Defendants failed to attend...
Source-derived case information.
- Citation
- [2019] KEELC 2179 (KLR)
- Parties
- Plaintiff: Pius Mulwa Masai (Suing as legal representative of the Estate of Masai Kabolelya); Defendant: Nzembi Musili; Defendant: Gregory Maingi; Defendant: Patrick Kitaka; Defendant: Vendi a.k.a. Bakari; Defendant: Joseph Mbuva; Defendant: Dominic Mbula Mutie
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 235 of 2014
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- judgment for the plaintiff
- Legal Topics
- Land Adjudication, Trespass, Eviction, Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pius Mulwa Masai (Suing as legal representative of the Estate of Masai Kabolelya)
Plaintiff
Nzembi Musili
Defendant
Gregory Maingi
Defendant
Patrick Kitaka
Defendant
Vendi a.k.a. Bakari
Defendant
Joseph Mbuva
Defendant
Dominic Mbula Mutie
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the Defendants trespassed upon parcel No. 1247 without lawful authority.
- 2 Whether the Plaintiff, as legal representative of the deceased owner, is entitled to an eviction order against the Defendants.
- 3 Whether the Defendants had any lawful claim or allocation to the suit property by the County Council of Mbeere.
Ratio Decidendi
The court found that the Plaintiff, as the legal representative of the estate of Masai Kabolelya, had established that the suit property (parcel No. 1247) was allocated to the deceased during the Land Adjudication process, as evidenced by a letter from the Land Adjudication Office. The Defendants failed to attend the hearing, did not adduce any evidence, and did not file any counterclaim or documents to support their alleged allocation by the County Council of Mbeere. The Plaintiff's evidence was uncontroverted and accepted by the court. The court held that the Plaintiff had proved his case on a balance of probabilities and was entitled to an eviction order. The prayer for a permanent...
Court Disposition
judgment for the plaintiff
Orders
- An eviction order is issued against all Defendants, their agents, servants, employees or any other person claiming through them from parcel No. 1247 within Karaba Adjudication section.
- The prayer for injunction is declined since the Defendants have all along been in possession.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT EMBU
E.L.C. CASE NO. 235 OF 2014
(FORMERLY KERUGOYA ELC NO. 91 OF 2013)
PIUS MULWA MASAI (Suing as legal representative of the
Estate ofMASAI KABOLELYA).........................................PLAINTIFF
VERSUS
NZEMBI MUSILI.........................................................1ST DEFENDANT
GREGORY MAINGI...................................................2ND DEFENDANT
PATRICK KITAKA.....................................................3RD DEFENDANT
VENDI A.K.A. BAKARI.............................................4TH DEFENDANT
JOSEPH MBUVA........................................................5TH DEFENDANT
DOMINIC MBULA MUTIE......................................6TH DEFENDANT
JUDGEMENT
1. By a plaint dated 16th December 2010 the Plaintiff sought the following reliefs against the Defendants:
a. A permanent injunction restraining the Defendants, their agents, servants or employees or any other person under their authority from entering parcel No. 1247.
b. An eviction order be issued against the Defendants, their servants and/or agents.
c. Costs of the suit and any other relief the court may deem just and expedient.
2. The basis of the said suit was that the Defendants had entered and trespassed upon Plot No. 1247 (hereinafter the suit property) and commenced construction thereon without the consent and authority of the owner who was deceased. The Plaintiff’s suit was filed in his capacity as the legal representative of the estate of the deceased owner, Masai Kabolelya.
3. The 1st, 2nd, 3rd, 5th and 6th Defendants filed their separate statements of defence denying the Plaintiff’s claim. They denied any trespass on the suit property but claimed that they had been allocated the suit property by the County Council of Mbeere. They pleaded that there was nothing preventing the defunct local authority from allocating them or any other person the suit property. They also pleaded that the Plaintiff was guilty of laches and acquiescence and that the suit was time-barred.
4. When the suit came up for hearing on 8th July 2019 only the Plaintiff testified. The Defendants did not attend court and neither did their advocate despite the hearing date having been taken by consent on 13th June 2019.
5. The Plaintiff adopted his witness statement dated 27th September 2012 as his evidence in chief. He also produced the documents listed in his list of documents dated 27th September 2012 as exhibits P1-P3. He asked the court to grant him the prayers sought in the plaint.
6. The court has considered the pleadings, documents and evidence on record. The Plaintiff’s case is that the suit property was allocated to his deceased parent during the Land Adjudication process. The Plaintiff produced a letter dated 18th February 2009 from the Land Adjudication Office to that effect. The Plaintiff’s evidence was not controverted by the Defendants at the trial. The court accepts it as such.
7. The court notes that the Defendants did not lodge any counterclaim against the Plaintiff. They did not also file any documents to demonstrate their interest, if any, in the suit property. The court, therefore, finds that the Plaintiff has proved his case on a balance of probabilities against the Defendants.
8. The upshot of the foregoing is that the Plaintiff’s suit hereby succeeds. There shall be judgement for the Plaintiff against the Defendants in the following terms:
a. An eviction order be and is hereby issued against all the Defendants, their agents, servants, employees or any other person claiming through them from the suit property i.e. parcel No. 1247 within Karaba Adjudication section.
b. The prayer for injunction is hereby declined since the Defendants have all along been in possession.
c. The Plaintiff is hereby awarded costs of the suit against the Defendants.
9. It is so decided.
JUDGEMENT DATED, SIGNED and DELIVERED in open court at EMBU this 18th DAY of JULY, 2019.
In the presence of Ms. Kung’u for the Plaintiff and in the absence of the Defendants.
Court Assistant Mr. Muinde
Y.M. ANGIMA
JUDGE
18. 07. 19