[2016] KEHC 3987 (KLR)
The court found that the issues of ownership and entitlement to the suit land had already been conclusively determined in Bungoma HCCC 78 of 1998, which awarded the land to the plaintiffs. There was no evidence of any appeal or stay of execution. The defendant, having been served and aware of the proceedings, failed...
Source-derived case information.
- Citation
- [2016] KEHC 3987 (KLR)
- Parties
- Applicant: Teresina Rapando; Applicant: Salome Malala; Respondent: Billiat Achieng Rapando
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 21 of 2014
- Procedural Posture
- Land and Environment Case / Judgment
- Outcome
- Plaintiffs' claim allowed; eviction order granted.
- Legal Topics
- Eviction, Breach of Trust, Land Registration, Title Cancellation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Teresina Rapando
Applicant
Salome Malala
Applicant
Billiat Achieng Rapando
Respondent
Procedural Posture
Land and Environment Case / Judgment
Legal Issues
- 1 Whether the defendant is unlawfully occupying land parcel East Wanga/Malaha/628 belonging to the plaintiffs.
- 2 Whether the plaintiffs are entitled to an order of eviction against the defendant.
- 3 Whether the previous judgment in Bungoma HCCC 78 of 1998 is binding and conclusive regarding ownership of the suit land.
Ratio Decidendi
The court found that the issues of ownership and entitlement to the suit land had already been conclusively determined in Bungoma HCCC 78 of 1998, which awarded the land to the plaintiffs. There was no evidence of any appeal or stay of execution. The defendant, having been served and aware of the proceedings, failed to attend or provide any legal basis for continued occupation. The court held that the plaintiffs were entitled to vacant possession and ordered the eviction of the defendant and all persons claiming under him from East Wanga/Malaha/628. The court further directed that the eviction be carried out by the court bailiff with police assistance, and awarded costs to the plaintiffs.
Court Disposition
Plaintiffs' claim allowed; eviction order granted.
Orders
- The defendant and all persons claiming under him shall be evicted from land parcel East Wanga/Malaha/628.
- The defendant shall give vacant possession to the plaintiffs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
LAND AND ENVIRONMENT CASE NO. 21 OF 2014
TERESINA RAPANDO
SALOME MALALA …………………………………………….APPLICANTS
VERSUS
BILLIAT ACHIENG RAPANDO …………...……………….......RESPONDENT
JUDGEMENT
[1] The 1st and 2nd plaintiffs herein filed Bungoma High Court Civil Case No. 78 of 1998 against Grace Omukwaya Malala, Peter Waswa Rapando, William Wambani Rapando, Bildad Achieng Rapando. They claimed for general damages for breach of trust and transfer of LR No. E. Wanga/Malaha/626, 627, 628, 629, 630 and 631. The plaintiffs claim was allowed by the court and order was issued directing the Land Registrar Kakamega to cancel the aforesaid parcel and register them in the names of the plaintiffs.
[2] The 1st plaintiff gave evidence that she is the daughter of the late Malala Rapando, that her father was the original owner of East Wanga/Malaha/628. That after the death of the plaintiff’s father the land was sub divided by Peter Waswa her uncle who had inherited the plaintiff’s mother and registered the resultant subdivisions to himself and his family. The situation was corrected by this court vide Bungoma High Court Civil case No. 78 of 1998 aforesaid.
Pursuant to that court order a decree was extracted and titles processed. The decree and title were annexed to the pleadings herein. What then precipitated this case was the fact that the defendant has refused to move and vacate out of the land as per the Court Order. The plaintiffs prayed that the defendant be evicted out of the suit land. The defendant who was duly served and was aware of the hearing date never attended the court. The plaintiff prayed that the case be closed. The case was then closed.
[3] The issues in this case were fully determined in Bungoma HCCC 78 of 1998 aforesaid. The suit land was adjudged to belong to the plaintiffs. As far as the court is aware there is no appeal preferred. There is no stay or any kind of order upon which the defendant can peg his stay on the suit land.
[4] I do order that the defendant shall be evicted out of the suit land together with his agents, representatives, assigns, lessees and servants from land parcel East Wanga/Malaha/628. He shall give vacant possession to the plaintiffs.
[5] The said eviction shall be done by the court bailiff. The police of the nearest police station shall provide security during eviction.
The plaintiffs shall have the costs of this suit.
Dated, Signed and delivered at Bungoma this 27th day of July 2016
S.MUKUNYA - JUDGE
In the Presence of
Madam Nanzushi for Madam Wakoli for the applicant
N/A for the respondent
Gladys Court assistant