[2005] KEHC 42 (KLR)
The court found that the plaintiffs had established ownership of the suit land by producing a title deed registered in the name of ROBINA NYAKWERIGERIA GROUP. The defendant neither claimed ownership of the suit land nor provided any evidence to challenge the plaintiffs' title. The defendant's defence did not raise...
Source-derived case information.
- Citation
- [2005] KEHC 42 (KLR)
- Parties
- Plaintiff: Wilson Onchoka; Plaintiff: George Sarota; Plaintiff: James Koniga; Defendant: Alloice Kimori
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 131 of 2004
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Defence and for Eviction Order
- Outcome
- application allowed; defence struck out; judgment entered for plaintiffs as prayed
- Judges
- K Bauni
- Legal Topics
- Eviction, Striking Out of Defence, Injunctions, Trespass, Ownership of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Onchoka
Plaintiff
George Sarota
Plaintiff
James Koniga
Plaintiff
Alloice Kimori
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Defence and for Eviction Order
Legal Issues
- 1 Whether the defendant's defence should be struck out for lack of merit.
- 2 Whether the plaintiffs are entitled to an eviction order against the defendant from the suit land.
- 3 Whether the plaintiffs are entitled to an injunction restraining the defendant from re-entering the suit land.
Ratio Decidendi
The court found that the plaintiffs had established ownership of the suit land by producing a title deed registered in the name of ROBINA NYAKWERIGERIA GROUP. The defendant neither claimed ownership of the suit land nor provided any evidence to challenge the plaintiffs' title. The defendant's defence did not raise any triable issue and failed to contest the plaintiffs' claim. The absence of a replying affidavit or grounds of opposition, and the defendant's non-appearance at the hearing, further weakened his position. The court concluded that there was no issue to proceed to trial and that the defence should be struck out. Judgment was entered for the plaintiffs as prayed, including...
Court Disposition
application allowed; defence struck out; judgment entered for plaintiffs as prayed
Orders
- The defendant's defence is struck out.
- Judgment is entered for the plaintiffs as prayed in the plaint.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA OF KISII
Civil Suit 131 of 2004
1. WILSON ONCHOKA
2. GEORGE SAROTA
3. JAMES KONIGA……………………………………. PLAINTIFFS
VERSUS
ALLOICE KIMORI ……………….…..……………… DEFENDANT
RULING
The applicant seeks court to order the defence by the Defendant to be struck out and an order he be evicted from the suit land. He also prays for costs.
By a plaint filed in court on 6th September 2004 the plaintiff sought for an order to evict the defendant from land NO.TRANSMARA/MOYOI/9. He also sought for an injunction to injunct him from re-entering the suit land. The plaintiff is a self help grap and in the plaint stated they are the registered owner of the suit land and that since 2003 the plaintiff trespassed into the suit land and erected structures therein.
The plaintiff filed a defence on 15th September 2004. He said in para.3 thereof that he did not trespass on the plaintiffs suit land and that he owns land
No.TRANS MARA/ANGATA – BARINGO/490 which is not even adjacent to the suit land.
The defendant did not file any replying affidavit or grounds of opposition.
He and his counsel did not appear in court during the hearing of the application dispute being served.
I have considered the application.
The plaintiff avers that his land is NO.TRANSMARA/MOYOI/9.
He annexed copy of the title deed which clearly show that the land is Registered in the name of ROBINA NYAKWERIGERIA GROUP. Title deed was issued on 23rd May 2001. The defendant did not even in his defence claim to be the owner of that land.
There is therefore nothing to go for trial. I find this a proper case to strike out the defence.
I therefore allow the application, strike out the defence and enter judgment for the plaintiff as prayed.
Dated 11th July 2005.
KABURU BAUNI
JUDGE
c.c. Mobisa
Mr. Soire for Masese for applicant.
KABURU BAUNI
JUDGE