[2015] KEELC 275 (KLR)
The court found that the plaintiff had established, through uncontroverted documentary evidence, that he was the lawful allotee and owner of Plot No. 555 at Milimani Settlement Scheme. The allocation was confirmed by both the District Land Adjudication and Settlement Officer and the Director of Land Adjudication and...
Source-derived case information.
- Citation
- [2015] KEELC 275 (KLR)
- Parties
- Plaintiff: Shadrack C. Cheserek; Defendant: Kipserem Mengich; Defendant: Peter Kimaru Kenei
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 60 of 2014
- Procedural Posture
- Land Case / Judgment
- Outcome
- Judgment for the plaintiff. Declaration of ownership, eviction, permanent injunction, and costs granted. Mesne profits claim rejected.
- Judges
- EO Obaga
- Legal Topics
- Allocation of Settlement Scheme Land, Eviction, Ownership Declaration, Injunctions, Mesne Profits, Land Adjudication
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shadrack C. Cheserek
Plaintiff
Kipserem Mengich
Defendant
Peter Kimaru Kenei
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the plaintiff is the lawful owner of Plot No. 555 at Milimani Settlement Scheme.
- 2 Whether the defendants are entitled to occupy or use Plot No. 555.
- 3 Whether the plaintiff is entitled to an order of eviction and permanent injunction against the defendants.
Ratio Decidendi
The court found that the plaintiff had established, through uncontroverted documentary evidence, that he was the lawful allotee and owner of Plot No. 555 at Milimani Settlement Scheme. The allocation was confirmed by both the District Land Adjudication and Settlement Officer and the Director of Land Adjudication and Settlement. The defendants failed to appear and did not challenge the plaintiff's evidence. The court held that the defendants had no legal right to occupy or use the suit land. The prayer for mesne profits was rejected due to lack of evidentiary basis. The court granted a declaration of ownership, an order of eviction, a permanent injunction, and costs to the plaintiff.
Court Disposition
Judgment for the plaintiff. Declaration of ownership, eviction, permanent injunction, and costs granted. Mesne profits claim rejected.
Orders
- A declaration that the plaintiff is the lawful owner of Plot No. 555 at Milimani Settlement Scheme and that the defendants are not entitled to use the same.
- An order of eviction against the defendants from Plot No. 555 at Milimani Settlement Scheme.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 60 OF 2014
SHADRACK C. CHESEREK.........................PLAINTIFF
VERSUS
KIPSEREM MENGICH.............................1ST DEFENDANT
PETER KIMARU KENEI............................2ND DEFENDANT
J U D G M E N T
INTRODUCTION
The plaintiff is the beneficial owner of Plot No. 555 at Milimani Settlement Scheme(suit land). The two defendants are brothers. The plaintiff brought this suit against the defendants seeking a declaration that he is the legal owner of the suit land and that the defendants should be evicted therefrom and pay him mesne profits from the year 2008.
At the hearing of this suit on 28/5/2015 the defendants advocates applied for adjournment through another counsel on the ground that he had lost touch with the defendants and that he was in the process of preparing an application to cease acting for the defendants. The application for adjournment was rejected when the plaintiff's advocate brought to the attention of the court that the defendants were actually present in court. When the case was called out for hearing, the defendants were not there. The hearing therefore proceeded ex-parte.
PLAINTIFF'S CASE
The plaintiff testified that he applied for allocation of land to the Settlement Fund Trustee in the year 2000. His application was successful and he was given a letter of offer dated 5/12/2000. He was allocated Plot No. 555 at Milimani Settlement Scheme. The plot was 2 ½ acres. He paid the requisite fees after which he was taken to the ground and shown his land.
The plaintiff took possession and constructed a house on the suit land. The defendants came and chased him away and took possession. He testified that the second defendant had been allocated Plot No. 579 at the same settlement scheme but that he does not utilize the same. The second defendant has allowed his brother the first defendant who is on the land. The plaintiff went and complained to the land adjudication and settlement office who wrote confirming that he is the allotee of the suit land and that the second defendant has nothing to do with the suit land and should vacate the same.
ANALYSIS OF EVIDENCE
The plaintiff produced a letter of offer dated 5/12/2000 [Exhibit 1]. According to the letter of offer, the plaintiff was supposed to clear the full purchase price within 90 days. He however paid Kshs.19,171/= on 22/8/2008 as per copy of receipt produced as Exhibit 2. On 29/10/2012 the Ministry of Lands demanded for arrears which he owed the ministry. He produced a copy of the demand letter as Exhibit 3. On 6/2/2013 he paid Kshs.5,195/= as per receipt produced as Exhibit 4.
On 11/4/2013 the District Land Adjudication and Settlement Officer wrote to the Director of Land Adjudication and Settlement Nairobi stating that the second defendant had been allocated Plot No. 579 but that it was later discovered that the same had been reserved as a quarry pit. He was asking the Director of Land Adjudication to verify the files in respect of Plot No. 555 and 579. The plaintiff produced this letter as Exhibit 5. A response from the Director of Land Adjudication and Settlement was written on 13/5/2013 (Exhibit 6). The Director confirmed that Plot No. 555 (suit land) had been allocated to the plaintiff.
It is therefore clear that the suit land was allocated to the plaintiff. There are documents filed in the file which shows that the second defendant had been allocated Plot No. 579 but was later given Plot No. 555. The final records are kept in Nairobi in the office of the Director of Land Adjudication and Settlement. The Director has confirmed that the plot was allocated to the plaintiff. This has been confirmed by the letter produced as Exhibit 6. The second defendant's argument that the suit land was not available for allocation in the year 2000 has no basis.
DECISION
I find that the plaintiff's evidence which has not been controverted has established that the plaintiff is the legal owner of the Plot No. 555 at Milimani Settlement Scheme. I grant the following reliefs:-
(a) A declaration that the plaintiff is the lawful owner of Plot No. 555 at Milimani Settlement Scheme and that the defendants are not entitled to use the same.
(b) An order of eviction against the defendants from Plot No. 555 at Milimani Settlement Scheme.
(c) A permanent injunction restraining the defendants or their agents from interfering with Plot No. 555 at Milimani Settlement Scheme once they are evicted.
(d) Costs of this suit.
The prayer for mesne profits is rejected as there was no basis laid for the same.
Dated, signed and delivered at Kitale on this 2nd day of July, 2015.
E. OBAGA
JUDGE
In the presence of Mr. Chebii for Mr. Yano for Plaintiff and Defendants.
Court Clerk – Isabellah.
E. OBAGA
JUDGE
2/7/2015