[2014] KEHC 3084 (KLR)
The court found that the plaintiff had proved his case on a balance of probabilities. The plaintiff's documentary evidence, including the title deed, established him as the sole and legal proprietor of land parcel Kimilili/Kimilili/2533. The defendant, despite being duly served, failed to appear or contest the...
Source-derived case information.
- Citation
- [2014] KEHC 3084 (KLR)
- Parties
- Plaintiff: Simiyu Musanga Ndombi; Defendant: Marcella Nabukuto Patroba
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 332 of 2013
- Procedural Posture
- Land Case / Judgment
- Outcome
- Plaintiff's claim allowed; defendant ordered to vacate land; eviction orders granted in default; no costs awarded.
- Judges
- AA Omollo
- Legal Topics
- Eviction, Ownership Dispute, Title Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simiyu Musanga Ndombi
Plaintiff
Marcella Nabukuto Patroba
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the plaintiff is the lawful proprietor of land parcel Kimilili/Kimilili/2533.
- 2 Whether the defendant should be evicted from the suit land and restrained from interfering with it.
Ratio Decidendi
The court found that the plaintiff had proved his case on a balance of probabilities. The plaintiff's documentary evidence, including the title deed, established him as the sole and legal proprietor of land parcel Kimilili/Kimilili/2533. The defendant, despite being duly served, failed to appear or contest the claim, and no evidence was presented to challenge the plaintiff's ownership. The court relied on the Land Registration Act, which provides that the registered proprietor holds absolute ownership and that the certificate of title is conclusive evidence unless challenged on grounds of fraud or misrepresentation, which was not alleged or proved in this case. Consequently, the court...
Court Disposition
Plaintiff's claim allowed; defendant ordered to vacate land; eviction orders granted in default; no costs awarded.
Orders
- The defendant is ordered to stop forthwith from dealing in any manner with land parcel no. Kimilili/Kimilili/2533.
- The defendant must vacate the land within 30 days from the date of judgment.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
LAND AND ENVIRONMENT CASE NO. 332 OF 2013
SIMIYU MUSANGA NDOMBI …................................ PLAINTIFF
VERSUS
MARCELLA NABUKUTO PATROBA.................Defendant
JUDGMENT
1. The plaintiff filed a plaint on 2nd December 2013 seeking the court to evict the defendant from his land parcel no. Kimilili/Kimilili/2533 and grant a permanent injunction to prevent the defendant from interfering with the said parcel. The plaintiff filed along with the plaint some exhibits in support of his case as required under Order 3 rule 2.
2. Te defendant failed to enter appearance even after being served with summons and notice of hearing. This court then proceeded by way of formal proof after establishing from the record that the defendant was duly served.
3. The Plaintiff has urged this court to evict the defendant from the said parcel claiming that he is the real proprietor of the land. The plaintiff told court that he is the sole proprietor of all that parcel known as Kimilili/Kimilili/2533 having bought it from one John Wafula Patroba who happens to be the defendant's brother. That after the death of the seller the defendant claimed that the land belonged to him. That he put up structures and started selling firewood.That the defendant reported the matter to the D.O. who summoned the two and demanded for the production of documents. That he showed his but the defendant did not have any. It was then the the D.O asked the plaintiff to come to court and seek for the above orders.
4. I have carefully examined the plaintiff's documents and it clearly indicates that he is the sole proprietor. There are no encumbrances registered upon the said title deed attached. The defendant was duly served and he did not at any instance come to court to defend himself. Court is left to assume and rightly so from the examination of the documents that the plaintiff is the real owner of the said parcel.
5. Section 24 of the Land Registration Act confers absolute ownership of title on the person registered as the proprietor. Section 26 goes ahead to state that a certificate of title is conclusive evidence of proprietorship and can only be challenged on grounds of fraud or misrepresentation. From the documents produced by the plaintiff it shows that he is the owner of land parcel number Kimilili/Kimilili/2533 and as such he is the legal proprietor of that parcel. No evidence has been tendered to the contrary.
6. In the premises I find the plaintiff has proved his case on a balance of probabilities and order the defendant to stop forthwith from dealing in whichever manner with land parcel no. Kimilili/Kimilili/2533. His presence in that parcel is hereby rendered unlawful and he should vacate the land within 30 days from the date of this judgment. In default, orders of eviction be and are hereby issued to the plaintiff.
7. Since the suit is not defended no costs are awarded.
Dated, signed and delivered in Bungoma this 17th day of July 2014.
A. OMOLLO
JUDGE