[2010] KEHC 152 (KLR)
The court found that the plaintiff, Simiyu Namawanga, had proved on a balance of probabilities that he is the registered proprietor of Elgon/Kaptama/265, as evidenced by the original certificate of title produced in court. The defendants, having failed to enter appearance or file a defence, did not controvert the...
Source-derived case information.
- Citation
- [2010] KEHC 152 (KLR)
- Parties
- Plaintiff: Simiyu Namawanga; Defendant: Shem Kororia; Defendant: Peter Kiminyi
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 65 of 2009
- Procedural Posture
- Civil Suit / Judgment After Formal Proof; Interlocutory Judgment Entered Due to Non Appearance by Defendants
- Outcome
- Judgment for the plaintiff; eviction order granted; costs awarded to plaintiff.
- Legal Topics
- Eviction, Trespass, Registered Land Ownership
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simiyu Namawanga
Plaintiff
Shem Kororia
Defendant
Peter Kiminyi
Defendant
Procedural Posture
Civil Suit / Judgment After Formal Proof; Interlocutory Judgment Entered Due to Non Appearance by Defendants
Legal Issues
- 1 Whether the plaintiff is the registered proprietor of Elgon/Kaptama/265 entitled to exclusive possession.
- 2 Whether the defendants trespassed onto the plaintiff's land without lawful justification.
- 3 Whether the plaintiff is entitled to an eviction order and costs.
Ratio Decidendi
The court found that the plaintiff, Simiyu Namawanga, had proved on a balance of probabilities that he is the registered proprietor of Elgon/Kaptama/265, as evidenced by the original certificate of title produced in court. The defendants, having failed to enter appearance or file a defence, did not controvert the plaintiff's evidence. The court held that the plaintiff is entitled to exclusive possession of his land and that the continued occupation by the defendants constitutes trespass. Accordingly, the plaintiff is entitled to an eviction order and costs as prayed.
Court Disposition
Judgment for the plaintiff; eviction order granted; costs awarded to plaintiff.
Orders
- Eviction order against the defendants, their agents, servants, or family from Elgon/Kaptama/265 if they fail to vacate within 90 days of service of the order.
- Plaintiff awarded costs of the suit.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CIVIL SUIT NO. 65 OF 2009
SIMIYU NAMAWANGA ………………………………….PLAINTIFF
VERSUS
SHEM KORORIA
PETER KIMINYI........................…………………..DEFENDANTS
JUDGMENT
1. The plaintiff filed this suit on 28th April 2009 seeking for an order of eviction against the Defendants, agents, servants or family from Mt. Elgon/Kaptama/265 as well as costs of the suit. The summons to enter appearance were served upon the defendants as per the affidavit of service filed on 21st January, 2010. The defendants did not enter appearance and no defence was filed and an interlocutory judgment was entered on 10th February, 2010.
The matter was filed for formal proof. the plaintiff Simiyu Namawanga gave evidence in support of the claim. He testified that he is the registered proprietor of title No. Elgon/Kaptama/265 approximately 5. 6 Hectares. He was issued with a title deed on 9th February, 1996 although he has lived on this parcel of land with his family from 1964. The plaintiff testified that due to the tribal clashes that rocked the area in 1992, he was forced to flee from his land for safety. That is the two defendants, Shem Kororia and Peter Kiminyi trespassed upon his land without any color of right.
Despite demand that the defendants should vacate the plaintiff’s parcel of land, they have failed and neglected to move out of the plaintiff’s parcel of land. The plaintiff testified that he is aged 86 years. He has children and grand children who depend on him; he urged the court to issue order of eviction against the two defendants and to award him costs.
The defendants did not enter appearance; the plaintiff was able to prove his case to the required standard that he is the registered proprietor of the land known as Elgon/Kaptama/265. His evidence was not controverted, he produced the original certificate of title for the suit land.
Accordingly the plaintiff is entitled to the prayers sought as follows:-
There be an eviction order against the plaintiff/agents/servants/family from Elgon/Kaptama/265 if they fail to move within 90 days of being served the order.
The plaintiff shall have the costs of this suit.
Judgment read and signed on 12th November, 2010.
MARTHA KOOME
JUDGE.