[2019] KEELC 4371 (KLR)
The court found that the plaintiff failed to prove his case on a balance of probabilities. The property in question, Kakamega/Viyalo/1, had ceased to exist and was subdivided into new parcels, as established in a previous suit (PALASINA SIBIRO LUBEKA VS THOMAS ANZEZE ELC Case No 8 of 2015). The plaintiff did not...
Source-derived case information.
- Citation
- [2019] KEELC 4371 (KLR)
- Parties
- Plaintiff: Thomas Anzeze Musira; Defendant: Samson Jarena
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 27 of 2016
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- plaintiff's suit dismissed
- Judges
- NA Matheka
- Legal Topics
- Eviction, Ownership Dispute, Title Verification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Anzeze Musira
Plaintiff
Samson Jarena
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to an eviction order against the defendant from property known as Kakamega/Viyalo/1.
- 2 Whether the plaintiff has proved ownership and entitlement to the suit property on a balance of probabilities.
- 3 Whether the suit is frivolous or an abuse of court process.
Ratio Decidendi
The court found that the plaintiff failed to prove his case on a balance of probabilities. The property in question, Kakamega/Viyalo/1, had ceased to exist and was subdivided into new parcels, as established in a previous suit (PALASINA SIBIRO LUBEKA VS THOMAS ANZEZE ELC Case No 8 of 2015). The plaintiff did not provide a current search certificate, and the title produced was outdated (from 1998). The court held that the suit was frivolous and an abuse of the court process, as it was based on non-existent property and lacked current evidence of ownership. Consequently, the plaintiff's claim for eviction was dismissed.
Court Disposition
plaintiff's suit dismissed
Orders
- The plaintiff's suit is dismissed.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC CASE NO. 27 OF 2016
THOMAS ANZEZE MUSIRA....................................PLAINTIFF
VERSUS
SAMSON JARENA.................................................DEFENDANT
JUDGEMENT
At all material times the plaintiff was and is the registered owner of the property known as Kakamega/Viyalo/1. The defendant without any lawful plaintiff has entered into and remained in position property known as Kakamega Viyalo/1 and has refused to vacate the said property. The plaintiff’s claim against the defendant is for an eviction order to issue against the defendant evicting him from the said property. Unless evicted from the said property the defendant will continue to enjoy the use and benefit of the said property to the detriment of the plaintiff. The plaintiff prays for judgment against the defendant.
(a) An order of eviction to issue evicting the defendant from the property known as Kakamega/Viyalo/1.
(b) Costs of this suit.
This court has considered the case and the submissions herein. The defendant failed to defend the matter or file any papers. The plaintiff admits there has been a similar suit namely PALASINA SIBIRO LUBEKA VS THOMAS ANZEZE ELC case No 8 of 2015. In that case the plaintiff is well aware that land parcel Kakamega/Viyalo/1 ceased to exist and was subdivided to land registration No. NORTH MARAGOLI/VIYALO/1654 and land registration No. NORTH MARAGOLI/VIYALO/1655. Judgement was delivered in that matter way back in 27th September 2017. There is no current search certificate in this matter and the copy of the title produced is dated 1998. This matter is frivolous and an abuse of the court process. I find that the plaintiff has failed to prove his case on a balance of probabilities and I dismiss it with no orders as to costs.
Orders accordingly.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 28TH DAY OF FEBRUARY 2019.
N.A. MATHEKA
JUDGE