[2010] KEHC 901 (KLR)
The court found that the plaintiff had proved, on a balance of probabilities, that he is the registered proprietor of the suit land, LR No. Kakamega/Lumakanda/4353. The defendant, having been served with summons, failed to enter appearance or file a defence, and did not challenge the plaintiff's evidence. The...
Source-derived case information.
- Citation
- [2010] KEHC 901 (KLR)
- Parties
- Plaintiff: Zakaria Monyo; Defendant: Wycliffe Lukhayo
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 97 of 2007
- Procedural Posture
- Civil Suit / Judgment After Formal Proof; Interlocutory Judgment Previously Entered Due to Non Appearance
- Outcome
- Plaintiff's suit allowed; eviction order granted against defendant; costs awarded to plaintiff.
- Legal Topics
- Eviction, Trespass to Land, Registered Proprietorship
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zakaria Monyo
Plaintiff
Wycliffe Lukhayo
Defendant
Procedural Posture
Civil Suit / Judgment After Formal Proof; Interlocutory Judgment Previously Entered Due to Non Appearance
Legal Issues
- 1 Whether the plaintiff is the registered proprietor of LR No. Kakamega/Lumakanda/4353.
- 2 Whether the defendant has trespassed onto the plaintiff's land without any color of right.
- 3 Whether the plaintiff is entitled to an eviction order against the defendant.
Ratio Decidendi
The court found that the plaintiff had proved, on a balance of probabilities, that he is the registered proprietor of the suit land, LR No. Kakamega/Lumakanda/4353. The defendant, having been served with summons, failed to enter appearance or file a defence, and did not challenge the plaintiff's evidence. The plaintiff's title was produced in court and not controverted. The court held that the plaintiff was entitled to exclusive possession of the land and that the continued occupation by the defendant amounted to trespass. Consequently, the court granted the eviction order sought by the plaintiff and awarded him the costs of the suit.
Court Disposition
Plaintiff's suit allowed; eviction order granted against defendant; costs awarded to plaintiff.
Orders
- An order of eviction to issue against the defendant, his servants or anybody working with his authority on parcel no. Kakamega/Lumakanda/4353.
- The plaintiff shall have the costs of this suit.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OF KENYA
AT KITALE
CIVIL SUIT NO. 97 OF 2007
ZAKARIA MONYO ………………………………………..PLAINTIFF
VERSUS
WYCLIFFE LUKHAYO……………………………….DEFENDANT
JUDGMENT
1. The plaintiff’s suit was filed on 18th June, 2007 as per the plaint, the plaintiff is seeking for an eviction order against the defendant, his servants agents or anybody working under his authority on LR No. Kakamega/Lumakanda/4553 measuring approximately 0. 37Ha. According to the affidavit of service the defendant was served with the summons to enter appearance on 28th June, 2008 no appearance or defence was filed and interlocutory judgment was entered against the defendant on17th November, 2008. The matter came up for formal proof and the plaintiff gave evidence in support of his claim.
2. The plaintiff testified that sometimes in the year 2003, the defendant trespassed on his parcel of land known as LR No. Kakamega/Rumakenda/4353 without any color of right and has continued to do so despite the plaintiff’s demand and request to the defendant to vacate his piece of land. The plaintiff produced a copy of the title in respect of the suit premises which was issued on 31st January, 2006.
3. The plaintiff’s evidence was not challenged; he produced the copy of the title to support his claim that he is the registered proprietor of the suit premises. This evidence is not controverted as the defendant who was served with summonses failed to defend the claim. Accordingly I find the plaintiff has been able to prove his case on a balance of probability and I hereby grant the orders sought in the plaint.
4. An order of eviction to issue against the defendant, his servants or anybody working with his authority on parcel no. Kakamega/Lumakanda/4353. The plaintiff shall also have the cost of this suit.
JUDGMENT READ AND SIGNED ON 29TH DAY OF OCTOBER, 2010
MARTHA KOOME
JUDGE