[2018] KEELC 1458 (KLR)
The court found that the plaintiff failed to establish a justiciable cause of action, as there was no clear link between the entity named in the allotment letter ('St Monica Bethlehem') and the plaintiff ('Registered Trustees Legions of Mary'). The evidence produced did not demonstrate that the plaintiff was the...
Source-derived case information.
- Citation
- [2018] KEELC 1458 (KLR)
- Parties
- Plaintiff: Registered Trustees Legions of Mary; Defendant: Mary Tioko Ekuwom
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 11 of 2017
- Procedural Posture
- Land Case / Judgment
- Outcome
- suit dismissed with costs
- Judges
- FM Njoroge
- Legal Topics
- Eviction, Permanent Injunction, Trespass, Allotment Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Registered Trustees Legions of Mary
Plaintiff
Mary Tioko Ekuwom
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the plaintiff has established a justiciable cause of action against the defendant.
- 2 Whether the plaintiff is the lawful allottee of Plot No. 221 Nakwamekwi.
- 3 Whether the defendant is unlawfully occupying or trespassing on the suit property.
Ratio Decidendi
The court found that the plaintiff failed to establish a justiciable cause of action, as there was no clear link between the entity named in the allotment letter ('St Monica Bethlehem') and the plaintiff ('Registered Trustees Legions of Mary'). The evidence produced did not demonstrate that the plaintiff was the lawful allottee of Plot No. 221 Nakwamekwi. Consequently, the court held that the plaintiff lacked the requisite locus standi to seek the orders of eviction and injunction against the defendant. The suit was dismissed for want of a proper cause of action and abuse of court process.
Court Disposition
suit dismissed with costs
Orders
- The suit is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 11 OF 2017
REGISTERED TRUSTEES LEGIONS OF MARY..............PLAINTIFF
VERSUS
MARY TIOKO EKUWOM..................................................DEFENDANT
J U D G M E N T
1. In the plaint dated 11/1/2017 filed in this suit on 30/1/2017 the plaintiff seeks the following prayers:-
a) That an order of eviction of the defendant her servants/agents or anyone claiming through her from Plot No. 221 Nakwamekwi.
b) An order of permanent injunction in terms of paragraph 8 of the plaint.
c) Costs and interest thereon.
d) Any other relief that the court may deem just and fit to grant.
2. The affidavit of Samwel Nyang’au Getonto a court process server dated 2/3/2017 was filed on 23/3/2017. It shows that service of the summons to enter appearance plaint and other documents in the suit was effected upon the defendant on 3/3/2017. Despite that the defendant never filed any memorandum of appearance or defence. She never appeared at the hearing when this case was listed for formal proof. The plaintiff alone testified in the suit.
3. According to the plaint and the plaintiff’s evidence the plaintiff is a body corporate, the Registered Trustees of the Legions of Mary (St. Monicah Bethlehem) Lodwar, which is the lawful allottee of Plot No. 221, Nakwamekwi/Red Bana from Municipal Council of Lodwar, the predecessor of the County Government of Turkana vide Minute No. PA/1/14/92 of 23rd September, 1992. The plaintiff avers that the defendant was a licensee on the said Plot No 221 Nakwamekwiprior to the withdrawal of the said license in 2012 and the plaintiff has given notice to the defendant to vacate the premises.
4. It is the plaintiff’s case that prior to the termination of the defendant’s license on Plot 221 the defendant had been accommodated on the understanding that she was professing the Legion of Mary faith and was in the process of getting baptized. The plaintiff further states that contrary to its expectation the defendant prior to baptism started distorting the church doctrine by bringing into the church 2 boys from Lokichoggio by the names of Samson and Keya respectively whom she claimed to be angels and messengers from God which was in flagrant breach of the rules and regulations of the Church. The plaintiff states that even after the expulsion from the suit premises the defendant has continued to trespass into the said Plot 221 (suit premises) and also continued to wear the religious regalia only meant for Legion of Mary faithful and, worse still, continues to mislead the plaintiff’s faithful through strange and unchristian distortions/preaching.
5. The plaintiff’s witness, Philip Emulango Etilit, adopted the statement that he filed in this suit on 30/1/2017 as his evidence-in-chief. Receipts issued to an entity by the name “St Monica Bethlehem Legion of Mary” in respect of allotment and plot rent for an unidentified plot were produced in evidence. An original allotment letter for Plot No. 221 was also produced. The allottee named therein is “St Monica Bethlehem”. The plaintiff in this case is “Registered Trustees Legions of Mary”. No link between the two has been drawn by the witness. I find that the name of the allottee and the name of the plaintiff are different. I am not convinced that the matters herein are purely land matters and I am of the opinion that some entity or individual out there is out to abuse the court process. I do not find any justiciable cause of action revealed in the plaint or in the evidence of the plaintiff. I hereby dismiss this suit with costs.
Dated, signed and delivered at Kitale on this 19th day ofSeptember, 2018.
MWANGI NJOROGE
JUDGE
19/9/2018
Coram: Before Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Analo for the plaintiff
N/A for the defendant
COURT
Judgment read in open court.
MWANGI NJOROGE
JUDGE
19/9/2018