[2019] KEELC 1625 (KLR)
The court found that the Plaintiff is the registered proprietor of Matinyani/Kauma/1680, as evidenced by the Title Deed and official search. The Defendants did not contest the Plaintiff's ownership or provide any evidence of fraud or misrepresentation in the acquisition of the title. Under Section 27 of the...
Source-derived case information.
- Citation
- [2019] KEELC 1625 (KLR)
- Parties
- Plaintiff: Pius Muthusi Mwitwa; Defendant: Ronald Ndeleva Kitheka; Defendant: Mitau Milui
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 104 of 2010
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Plaintiff's suit allowed in full.
- Judges
- OA Angote
- Legal Topics
- Land Ownership, Title Registration, Trespass, Injunctions, Eviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pius Muthusi Mwitwa
Plaintiff
Ronald Ndeleva Kitheka
Defendant
Mitau Milui
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the Plaintiff is the lawful and bona fide owner of land parcel Matinyani/Kauma/1680.
- 2 Whether the Defendants trespassed on the Plaintiff's land and erected structures thereon.
- 3 Whether the Plaintiff is entitled to a permanent injunction and eviction orders against the Defendants.
Ratio Decidendi
The court found that the Plaintiff is the registered proprietor of Matinyani/Kauma/1680, as evidenced by the Title Deed and official search. The Defendants did not contest the Plaintiff's ownership or provide any evidence of fraud or misrepresentation in the acquisition of the title. Under Section 27 of the Registered Land Act (repealed), registration confers absolute ownership and all attendant rights. The Plaintiff's evidence was uncontroverted, and the Defendants' occupation of the land constituted trespass. The Plaintiff was therefore entitled to a declaration of ownership, a permanent injunction restraining the Defendants from interfering with the land, and an order for their...
Court Disposition
Plaintiff's suit allowed in full.
Orders
- A declaration is issued that the Plaintiff is the lawful and bona fide owner of Matinyani/Kauma/1680.
- A permanent injunction restraining the Defendants from entering, interfering with, or acting in any manner that may interfere with the Plaintiff’s quiet possession and enjoyment of Matinyani/Kauma/1680.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 104 OF 2010
PIUS MUTHUSI MWITWA...........................PLAINTIFF
VERSUS
RONALD NDELEVA KITHEKA.......1ST DEFENDANT
MITAU MILUI.....................................2ND DEFENDANT
JUDGMENT
1. In the Plaint dated 21st May, 2010, the Plaintiff has averred that at all material times, he was registered as the owner of land known as Matinyani/Kauma/1680 measuring 5. 44 Ha; that the Defendants trespassed on the said land in the year 2005 and 2006 and that the Defendants have erected semi-permanent structures on the land.
2. The Plaintiff is seeking for a declaration that he is the lawful and bona fide owner of the suit land and for a permanent injunction restraining the Defendants from trespassing on the suit land. Although the Defendants were served with Summons to Enter Appearance, they neither entered appearance nor filed a Defence.
3. The Plaintiff, PW1, informed the court that the Defendants are his relatives; that he is the registered proprietor of land known as Matinyani/Kauma/1680(the suit land) and that the suit land arose from the sub-division of land known as Matinyani/Kauma/687.
4. According to PW1, despite his protestations, the Defendants trespassed on the suit land in the year 2005 and 2006 and erected semi-permanent structures thereon. PW1 informed the court that the Defendants should be evicted from the suit land.
5. The evidence before me shows that the Plaintiff was registered as the proprietor of land known as Matinyani/Kauma/1680 on 18th My, 2007. A Title Deed was issued in favour of the Plaintiff on the same day. The Plaintiff produced in evidence the Title Deed and the official search in respect of the suit land.
6. The Defendants have not denied that the Plaintiff is the registered proprietor of the suit land. Indeed, the Defendants have not adduced any evidence to show that the Plaintiff’s Title Deed was obtained fraudulently or by misrepresentation.
7. Section 27 of the Registered Land Act (repealed) under which the suit land is registered provides that the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto. Some of the rights accruing to the registered proprietor of land includes exclusive use and possession of such land.
8. Being the registered proprietor of the suit land, and in the absence of evidence to show that the Plaintiff obtained the Title Deed for parcel of land number Mitinyani/Kauma/1680 unlawfully, I find that the Plaintiff has proved his case on a balance of probabilities.
9. For those reasons, I allow the Plaintiff’s Plaint dated 21st May, 2010 as follows:
a.A declaration be and is hereby issued that the Plaintiff is the lawful and bona fide owner and/or proprietor of all the land known as Matinyani/Kauma/1680.
b.A permanent injunction be and is hereby issued restraining the Defendants by themselves, agents and servants or through person acting under their authority from entering, interfering, depositing construction materials, construction, developing, cultivating, grazing and acting in any manner that may interfere with the Plaintiff’s quiet possession and enjoyment of all the property known as Matinyani/Kauma/1680.
c.The Defendants be evicted from all the property known as Matinyani/Kauma/1680 and the structures erected thereon by the Defendants be demolished.
d.The Defendants to pay the costs of the suit.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 20TH DAY OF SEPTEMBER, 2019.
O.A. ANGOTE
JUDGE