[2023] KEELC 22036 (KLR)

Wambua v Koisinget & 9 others (Environment and Land Case Civil Suit 33 of 2019) [2023] KEELC 22036 (KLR) (6 December 2023) (Judgment)

Neutral citation: [2023] KEELC 22036 (KLR)

Republic of Kenya

In the Environment and Land Court at Kajiado

Environment and Land Case Civil Suit 33 of 2019

MN Gicheru, J

December 6, 2023

Between

Magdalene Jepchumba Wambua

Plaintiff

and

David Koisinget

1st Defendant

Nathaniel Koisinget

2nd Defendant

Josphat Koisinget

3rd Defendant

Jonathan Koisinget

4th Defendant

Nicholas Patita Koisinget

5th Defendant

Jackson Selei

6th Defendant

Philip Koisinget

7th Defendant

Ezekiel Koisinget

8th Defendant

Francis Koisinget

9th Defendant

Paul Koisinget

10th Defendant

Judgment

1. The plaintiff seeks the following reliefs against the ten (10) defendants both jointly and severally.a.A permanent injunction restraining the defendants and/or their agents or servants or whoever is claiming under them from trespassing onto, remaining onto, disposing, harassing the plaintiff or in any way interfering with the plaintiff’s quiet possession and occupation of L.R. No. Kajiado/Kitengela/13260, suit land.b.General damages for trespass.c.Costs of the suit.d.Any other or further relief that this court may deem fit and just to grant in the circumstances.

2. The plaintiff’s case is as follows. She is the registered owner of the suit land. She purchased it from the original owner Koisinget Ole Mutunkei Lamo. Before he subdivided the land from which the suit land mutated, Koisinget Ole Mutunkei Lamo owned L.R No. Kajiado/Kitengel/11377 which he subdivided into eight (8) portions for sale. The plaintiff purchased the suit land on 25/4/2001 and took possession.

3. On or about 2/4/2019, the defendants trespassed onto the suit land and committed acts of wanton damage and wastage. On enquiring from the defendants why they were engaging in their unlawful acts, the plaintiff learnt that they were claiming to be children of the original owner. They were claiming that they wanted their property back since they were not consulted when it was sold. The plaintiff had no transactional relationship with the defendants and since her right to the land is protected under Articles 40 and 60 of the Constitution, she filed this suit seeking the four reliefs in paragraph 19 of the plaint dated 10/4/2019.

4. In support of her case, the plaintiff filed the following evidence.a.Her written statement.b.Copy of title deed for the suit land dated 20/4/2001. c.Copy of certificate of official search dated 3/11/2015. d.Copy of green card for the suit land dated 9/3/2016. e.Copy of mutation form for L.R. 11377 from which the suit land mutated.

5. The defendants, through their counsel on record filed a written statement of defence dated 15/11/2021 in which they generally deny the plaintiff’s claim. Vide paragraph 7 of the defence, they aver that to the best of their knowledge, the plaintiff bought 10 acres and not 14 and that she is aware of the excess acreage of her land. The defendants did not file any evidence in support of their defence.

6. At the trial on 3/5/2023 neither the defendants nor their counsel turned up even though the date had been taken by consent on 28/11/2022. The case proceeded, the defendants’ and their counsel’s absence notwithstanding. The plaintiff testified on oath and adopted her evidence filed earlier.

7. The Plaintiff’s counsel filed written submissions on 13/10/2023 and identified four issues for determination as follows.a.Whether the plaintiff is the registered owner of the suit land.b.Whether the defendants have any valid claim over the suit land.c.Whether the defendants trespassed on the suit land.d.Whether the plaintiff is entitled to the reliefs sought.

8. I have carefully considered all the evidence adduced in this case by the plaintiff including the witness statements and the documents. I have also considered the issue raised by the defendants in their defence. In addition to the above, I have considered the submissions filed by the learned counsel for the plaintiff and the law cited therein. I find that the four issues identified will settle the dispute. I make the following findings.

9. On the first issue, I find that the plaintiff is the registered owner of the suit land. She has the title deed in her name. This is prima facie evidence of ownership. In addition she has the supporting documents such as the copy of green card and the mutation form which shows where her land mutated from. Under Sections 24 and 25 of the Land Registration Act, the plaintiff is vested with absolute ownership of the suit land together with all rights and privileges belonging or appurtenant thereto.

10. Regarding the second issue, I find that the defendants have no valid claim to the land. They mounted a very feeble defence which was in fact an admission that the plaintiff owns ten (10) acres but claimed, without any evidence, that she did not own the balance of four acres. I find no merit in this averment by the defendants.

11. There is overwhelming evidence from the plaintiff that the defendants trespassed onto the suit land. This evidence is uncontroverted by the defendants in any form. I believe this evidence and find that indeed there was trespass. The plaintiff has not however adduced any evidence to show how much of the land was trespassed upon and for how long. The wanton damage and wastage is not explained in any detail. It is not in any form of evidence what this damage entailed.

12. Finally, I find that the plaintiff is entitled to all the reliefs that she seeks in this suit.For the above stated reasons, I enter judgment for the plaintiff against the defendants both jointly and severally as prayed for in the plaint.

It is so ordered.

DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 6TH DAY OF DECEMBER 2023. M.N. GICHERUJUDGE