Ali Kolela Montet v Moses Ekwiy Elany [2014] KEHC 1192 (KLR)

No.30/2014

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

HC ELC CASE NO. 389 OF 2012

DR. ALI KOLELA MONTET ………………………… PLAINTIFF

VERSUS

MOSES EKWIY ELANY …………….……………  DEFENDANT

J U D G M E N T

1. By a Plaint dated 4. 10. 2012, the Plaintiff prays for:-

An order against Defendant for eviction from thePlot Ngong/Ngong/44327,

Costs

Any other or further relief that the Hon.  Court maydeem just and adequate to grant the Plaintiff.

2. The Defendant was served with summons on 6. 2.2013 and affidavit of service was filed on 27. 3.2013.  There being no defence filed by the Defendant, the Plaintiff requested for judgment on 27. 3.2013 and formal proof date was taken.

THE PLAINTIFF’S CASE

3. On or about the year 1992 the Defendant was employed as the driver of late Iddi Malambu deceased uncle of the Plaintiff.  The Defendant was using a house on parcel No.Ngong/Ngong/27038 owned by the above deceased.  On the death of the said Iddi Malambu, Succession Cause No. Nairobi Suc. N0. 987/08 was lodged and the Plaintiff got share of the same estate in form of Ngong/Ngong/44327 where the house subject herein lies.

4. The Plaintiff has been unable to get possession of the same as the Defendant is still in occupation without any colour of right.  The Plaintiff issued the Defendant with notice to vacate vide letter dated 6. 6.2011 but in vain.  The Plaintiff sought assistance from the local chief, D.O. and Land Tribunal but was eventually advised to seek court assistance as they had no mandate to evict the Defendant. The Plaintiff holds the title of the subject matter.  The Plaintiff has produced certificate of grant as P. Exhibit No.1, copy of title P. Exhibit 2 and notice to vacate dated 6. 6.2011 P. Exhibit No.3.

5. After going through the evidence and the pleadings herein plus all the Exhibits produced in evidence, I am satisfied that the Plaintiff has proved his case on balance of probabilities.  His title to the subject matter stands unimpugned and under Article 40 of the Constitution he is entitled to enjoy his property in the subject matter.

6. There is no justification for the Defendant to continue occupying the Plaintiff’s property without his consent.  The Defendant is a trespasser and has to vacate the subject matter or he be forcefully evicted.

7. The court thus makes the following orders:

Prayers (a) and (b)of the Plaint are granted.

The Defendant shall vacate the suit property forthwith or he be evicted forcefully.

Costs to the Plaintiff at the lower scale since the suit is undefended.

Those are the orders of the court.

Signed and delivered at Machakos this28th day of November, 2014.

CHARLES KARIUKI

JUDGE