David Majani Alwahuva v Martin Makokha alias Macho Nne [2017] KEELC 2098 (KLR) | Title Ownership | Esheria

David Majani Alwahuva v Martin Makokha alias Macho Nne [2017] KEELC 2098 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KITALE

LAND CASE NO. 57 OF 2016

DAVID MAJANI ALWAHUVA...................................PLAINTIFF

VERSUS

MARTIN MAKOKHA alias MACHO NNE..........DEFENDANT

J U D G M E N T

1. The plaintiff filed this suit on 21/3/2016.  In the plaint dated 16/3/2016, the plaintiff claimed that he is the registered owner of Title No. Trans-Nzoia/Maridadi/173 measuring approximately 4. 0 Hectares which the defendant is allegedly occupying illegally.

2. There is no defence filed in this suit despite service of summons upon the defendant as is evidenced by the affidavit of service of Raphael Nyongesa Simiyu sworn on 7/4/2016.

3. A request for judgement in default of appearance and defence was lodged on 2/6/2016.  This matter finally came up for formal proof on 11/7/2017 when the plaintiff alone testified. The plaintiff produced the original title to the land.  A copy thereof was compared to with the original and marked “P. Exhibit 1”while the original was returned to the plaintiff.  A certified copy of an official search certificate in respect of the suitland was produced as “P. Exhibit 2”. The plaintiff also produced a letter dated 14/9/2015 from the County Surveyor, Trans-Nzoia to the Chief, Kwanza Location. The letter informs the Chief that surveyors from the County Surveyor’s office would be visiting the land known as Maridadi/174 on Tuesday 15th September, 2015 to demarcate the boundaries of the said plot.  It requests all parties to attend.  The letter is copied to the plaintiff.  It was produced as marked “P. Exhibit 3”

4. The fourth document produced by the plaintiff and marked as “P. Exhibit 4” is a surveyor’s report dated 18/3/2016.  It confirms that the surveyor visited the site as scheduled on 15/9/2015 in the presence of among other persons, the plaintiff and the defendant.  It confirms that the beacons had been removed. The surveyors re-established the positions of the beacons and found that the defendant was residing on the suitland and that the suitland belongs to the plaintiff. The land is 10 acres and was under a maize plantation.

5. At the hearing the plaintiff averred that the defendant was in occupation of one acre.  The plaintiff testified that if he were leasing the land under the defendant’s occupation he would have earned Ksh.8,000/=per year. He prayed for an award of damages based on that sum from the year2007 todate which is a period of ten years.  The plaintiff also prayed for costs of the suit.

6. Section 25 of the Land Registration Actprovides that the rights of a proprietor shall not be liable to be defeated except as provided in the Act and shall be held by the proprietor together with all privileges and appurtenances belonging thereto free from all other interests and claims save those shown on the register and liabilities interests and rights that affect the land and are declared by Section 28of the Act.

7. As indicated earlier in this judgement the plaintiff’s suit is unopposed. The defendant has therefore justified before this court as he was required to by summons his occupation of the land registered in the plaintiff’s name. I find that the plaintiff has proved his claim on a balance of probabilities.  He is entitled to judgement.  Consequently, I issue judgement in favour of the plaintiff against the defendant in the following terms:-

i. An eviction order shall issue against the defendant ordering his eviction together with his family members and servants and anyone else claiming through him, from LR. No. Trans-Nzoia/Maridadi/174. The provisions of Section 152 E and Section 152G of the Land Act (Act No 6 Of 2012) shall be complied with in the eviction of the defendant.

ii. The plaintiff is hereby awarded mesne profits in the aggregate of Kshs.80,000/= for the defendant’s occupation of the land from the year 2007 to the year 2017.  The defendant is also liable to pay mense profits of Kshs.8,000/= per year for every other year of occupation of the land after the year 2017 is over.

iii. The plaintiff is hereby awarded the costs of this suit.

It is so ordered.

Dated, signed and delivered at Kitale on this 31stdayof July, 2017.

MWANGI NJOROGE

JUDGE

In presence of:

Mr. Samba for the Plaintiff.

Court Assistant – Isabellah.

MWANGI NJOROGE

JUDGE

31/07/2017.