[2021] KEELC 154 (KLR)
The court found that the plaintiff had established ownership of the suit land through documentary evidence, including letters of administration and confirmation from the local Chief. The defendants, having failed to enter appearance or file a defence, did not controvert the plaintiff's evidence. The court held that...
Source-derived case information.
- Citation
- [2021] KEELC 154 (KLR)
- Parties
- Plaintiff: Tinga Rau Kalongo; Defendant: Boki Kurwa; Defendant: Konde Boki; Defendant: Hare Behare; Defendant: Hassan Behare
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 37 of 2018
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- suit allowed as prayed
- Judges
- MAO Odeny
- Legal Topics
- Ownership Disputes, Vacant Possession, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tinga Rau Kalongo
Plaintiff
Boki Kurwa
Defendant
Konde Boki
Defendant
Hare Behare
Defendant
Hassan Behare
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is the absolute and indefeasible owner of the suit land.
- 2 Whether the defendants unlawfully encroached and erected structures on the plaintiff's land.
- 3 Whether the plaintiff is entitled to orders for vacant possession and demolition of structures.
Ratio Decidendi
The court found that the plaintiff had established ownership of the suit land through documentary evidence, including letters of administration and confirmation from the local Chief. The defendants, having failed to enter appearance or file a defence, did not controvert the plaintiff's evidence. The court held that the plaintiff had proved his case on a balance of probabilities and was entitled to the reliefs sought, including a declaration of ownership, an order for vacant possession, and costs. The court further ordered that the defendants vacate the land within 30 days, failing which eviction orders would issue.
Court Disposition
suit allowed as prayed
Orders
- The plaintiff is declared the rightful owner of the un-demarcated parcel of land known as plot Nos 812, 377, 327, 283 and 289 measuring approximately 15 acres.
- The defendants are to give vacant possession within 30 days, failing which eviction orders shall issue.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC NO. 37 OF 2018
TINGA RAU KALONGO................................................................PLAINTIFF
VERSUS
1. BOKI KURWA
2. KONDE BOKI
3. HARE BEHARE
4. HASSAN BEHARE.................................................................DEFENDANTS
JUDGMENT
By a plaint dated 12th February 2018 the plaintiff herein sued the defendants jointly and severally seeking for the following reliefs:
a) The Plaintiff be declared the absolute and indefeasible owner of the suit plot and the Defendants be ordered to vacate forthwith.
b) The Defendant’s offending structures be demolished forthwith.
c) Costs of this suit be borne by the Defendant
d) Any other relief that this Honourable Court may deem fit to grant.
The defendants were served with summons but neither entered appearance nor filed defenses. The plaintiff’s case therefore proceeded by way of formal proofIt was PW1’s case that he is the registered owner of all that piece of land situate in Kisirwani Location, Kaloleni Sub-location measuring approximately 15 acres or thereabouts which suit land was given to him by his late father Rau Kalongo.
PW1 stated that due to lack of finances he was not able to develop the same and it therefore remained vacant. That the defendants encroached on the suit land and put up illegal strictures without PW1’s consent.
PW1 further stated that he was appointed administrator of the estate of the late Rau Kalongo of which he produced the documents to that effect. He also stated that he has asked the defendants to vacate to no avail hence the filing of this suit. He urged the court to grant the orders as prayed in the plaint.
ANALYSIS AND DETERMINATION
The defendants were served with summons to enter appearance together with the pleadings but neither filed a memorandum of appearance nor a defence. This suit was therefore undefended.
The plaintiff filed an application for injunction dated 3rd September 2018 under certificate of urgency which the court heard and granted orders of injunction as prayed against the defendants.
The plaintiff produced a letter from the Chief confirming that the suit land belongs to the plaintiff’s late father and letters of administration for the estate of his father. There being no evidence to controvert the plaintiff’s evidence, I find that the plaintiff has proved his case on a balance of probabilities and therefore allowed as prayed. I therefore make specific orders as follows:
a) The plaintiff is hereby declared as the rightful owner of un- demarcated parcel of land k known as plot Nos 812, 377, 327, 283 and 289 measuring 15 acres or thereabouts.
b) The defendants do give vacant possession within 30 days’ failure to which eviction order to issue.
c) Defendants to pay costs of the suit.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 15TH DAY OF DECEMBER, 2021.
M.A. ODENY
JUDGE
NB: In view of the Public Order No. 2 of 2021 and subsequent circular dated 28th March, 2021 from the Office of the Chief Justice on the declarations of measures restricting court operations due to the third wave of Covid-19 pandemic this Judgment has been delivered online to the last known email address thereby waiving Order 21 [1] of the Civil Procedure Rules.