[2013] KEHC 3638 (KLR)
The court found that the plaintiff had established, on a balance of probabilities, that he was the registered owner of the suit parcels Bungoma/Kabuyefwe/687 and 688, as evidenced by the title deeds and green card. The defendants, having failed to appear or contest the claim, left the plaintiff's evidence...
Source-derived case information.
- Citation
- [2013] KEHC 3638 (KLR)
- Parties
- Plaintiff: Wanjala Joram Mukongolo; Defendant: Waswa Daniel Mukongolo; Defendant: Delphas Kibaya Adenya Chigabi
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 114 of 2012
- Procedural Posture
- Land Case / Judgment
- Outcome
- Plaintiff's claim allowed; eviction order and permanent injunction granted.
- Judges
- AA Omollo
- Legal Topics
- Eviction Orders, Permanent Injunctions, Title Registration, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wanjala Joram Mukongolo
Plaintiff
Waswa Daniel Mukongolo
Defendant
Delphas Kibaya Adenya Chigabi
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the plaintiff is the lawful owner of land parcels Bungoma/Kabuyefwe/687 and 688.
- 2 Whether the defendants unlawfully occupied or interfered with the plaintiff's land.
- 3 Whether the plaintiff is entitled to eviction orders and a permanent injunction against the defendants.
Ratio Decidendi
The court found that the plaintiff had established, on a balance of probabilities, that he was the registered owner of the suit parcels Bungoma/Kabuyefwe/687 and 688, as evidenced by the title deeds and green card. The defendants, having failed to appear or contest the claim, left the plaintiff's evidence unchallenged. The court accepted the plaintiff's account that the 1st defendant, his uncle, had previously held the land and sold one parcel to the 2nd defendant, but that the plaintiff subsequently obtained lawful title through a vesting order. There was no evidence to the contrary. The court held that the plaintiff was entitled to eviction orders and a permanent injunction to protect...
Court Disposition
Plaintiff's claim allowed; eviction order and permanent injunction granted.
Orders
- Eviction order issued against both defendants from land parcels Bungoma/Kabuyefwe/687 and 688.
- Defendants to vacate the land within 60 days from service of the order.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
High Court at Bungoma
Environmental & Land Case 114 of 2012 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
WANJALA JORAM MUKONGOLO …………………....….....……… PLAINTIFF
VERSUS
WASWA DANIEL MUKONGOLO …………………..…........ 1ST DEFENDANT
DELPHAS KIBAYA ADENYA CHIGABI ……….…….......…. 2ND DEFENDANT
JUDGMENT
The plaintiff came to this court vide his plaint dated 13th November 2012. In it he seeks eviction order and permanent injunction restraining the defendants from interfering with his land parcel nos. Bungoma/Kabuyefwe/687 & 688. He also filed documents which were copy of title deed and green card in support of his claim.
The defendants never entered appearance. The first defendant was served on 1st December 2012 at Ruani in Kabuyefwe. He was also served with a hearing notice on 29th January 2013. There is no record though of service upon the 2nd defendant.
From the documents filed, land parcel no. Bungoma/Kabuyefwe/687was initially registered in the names of the 1st defendant as at 19th December 1995. On the same date, the green card shows it got transferred into the names of the 2nd defendant. The plaintiffs stated in evidence that his father is called Joram Wanyonyi. The green card shows he placed a caution on this title on 20th September 1999, claiming interest as a beneficiary.
He later removed the caution on 18th August 2009. The plaintiff got himself registered on 19th January 2012 through a vesting order on land case NO. 23 of 2006 at SRM’s court Kimilili. The order was not among the list of documents of the plaintiff.
In respect of parcel no. 688, only the 1st defendant was registered as at 19th December 1995. The plaintiff then got himself registered quoted vesting order in land case no. 23 of 2006 at SRM’s court Kimilili. He therefore he has title deeds to both the suit parcels.
The plaintiff’s evidence was based on the facts that the defendants grabbed his land. The 1st defendant is his uncle who apparently sold one of the parcels to the 2nd defendant and retained one for himself. The plaintiff called a witness who confirmed the plaintiffs evidence that the land belongs to the plaintiff.
There was no evidence to contrary and therefore this court finds the plaintiff has proved his case on a balance of probabilities as it required by law. I hereby issue an eviction order against both defendants from land parcel no. Bungoma/Kabuyefwe/687 & 688respectively. The order be served on them immediately.
They are given 60 days from the date of service of the order to move out of the land, in default of compliance with the order, the plaintiff be at liberty to evict them using lawful means. Subsequently after the eviction, the defendants themselves or through their agents are permanently restrained from interfering with the plaintiff’s peaceful use and enjoyment of the two parcels of land. The plaintiff bears the costs of this suit.
RULING DATED, SIGNED, READand DELIVERED in open court this 14th day of March 2013.
A.OMOLLO
JUDGE