David Nasoruta M Muhindi v Eliud Sangura Wallikhe, Alfred Walikhe Sangura, John Wanyama Walikhe, John Murumba Wafula, Josec Ilaga Ojoki, Isaac Oteba Muchi, Stephen Wekunda, Pius Kisenge Kilongi & Cleophas Juma of Wachia [2017] KEHC 7072 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

Environment And Land Case No. 255 Of 2013.

DAVID NASORUTA M MUHINDI …..................................PLAINTIFF/RESPONDENT

VERSUS.

ELIUD SANGURA  WALLIKHE……………………….1ST DEFENDANT/AAPLICANT.

ALFRED WALIKHE SANGURA………………………2ND DEFENDANT/APPLICANT.

JOHN WANYAMA WALIKHE……………….………  3RD DEFENDANT/APPLICANT.

JOHN MURUMBA WAFULA …................................  4TH DEFENDANT/APPLICANT.

JOSEC ILAGA OJOKI ………………………………   5TH DEFENDANT/APPLICANT.

ISAAC OTEBA MUCHI ………………………….....… 6TH DEFENDANT/APPLICANT.

STEPHEN WEKUNDA ……………………………..…  7TH DEFENDANT/APPLICANT.

PIUS KISENGE KILONGI ……………………….....….  8TH DEFENDANT/APPLICANT.

CLEOPHAS JUMA OF WACHIA……………..….......  9TH DEFENDANT/APPLICANT.

JUDGMENT.

[1] The plaintiff filed this suit against the defendant  claiming for a permanent injunction  restraining the defendants whether themselves and/or their servants from claiming and interfering  with the plaintiffs peaceful and quiet possession  of land parcel No. Kilili/Sikhendu/212 measuring approximately 14. 5 acres.

The plaintiff claims that  he is the registered owner of the suit land.  That the defendants  without colour of right  or express and/or implied permission has unlawfully interfered with the  plaintiffs quiet enjoyment of the suit land. He avers that  he has  asked them to move out and they have refused to do so.

[2] The defendant filed  their defences.  Eliud Sangura Walikhe said in his defence  that his father and the plaintiffs father were brothers. He said  a  portion of his fathers land was registered in the plaintiffs  fathers land and  that their fathers died before the dispute  was determined. Mr. Josek Ilaga Ojeki  alleged that he was a purchaser from a deceased person who also purchased from a deceased person while Jafred Walikhe Sangura 2nd defendant said that his father bought a portion from the brother of the plaintiff.  The 7th defendant said that he bought I acre from the brother of the plaintiff in 1996.  the 4th defendant said he had  occupied that land which was sold to him by his uncle Ben Wekhanya Balayo.

[3] The defendants further filed a general defence through J.S. Khakula  & Co. advocates and put a general and unspecific counterclaim.  The counter claim was replied to generally by the advocates for the plaintiff.  During the hearing, the plaintiff adopted his statement and produced a copy of the  title deed of land parcel in issue and closed his case.  Of the defendants only Eliud Sangura Walikhe gave evidence.  He said that he was a neighbour of the  father of the plaintiff.  He said that when the land was registered their land was registered in the name of Yohana 1963. that the said Yohana died before they resolved the issue.

[4] Having heard the case for the plaintiff and the evidence of the defendants there is only one thing for certain that the suit land is in the name of the plaintiff.  There was absolutely no proof of the allegation by the 1st defendant.  The other defendants did not come to court. They tendered no evidence.

[5]  On the balance of probability, I allow the plaintiffs suit and dismiss the counter claim by the defendant with costs and order the eviction of the defendants from the plaintiffs land.

It is so ordered.

Judgment read in open court.

DATEDandDELIVERED atBUNGOMAthis 10thday ofMarch2017.

S. MUKUNYA

JUDGE

In the presence of:

Court Assistants  Chemtai/Joy

Mr. Makokha for the Plaintiff

Mr. Musumba for Khakula  for the defendants