Edward Mwadena Tsutus v Chihulu Mwanzaka & Jessie Mkando Mwanzaka [2018] KEELC 4323 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MOMBASA

ELC NO 85 OF 2014

EDWARD MWADENA TSUTUS …………………………PLAINTIFF

-VS-

CHIHULU MWANZAKA

JESSIE MKANDO MWANZAKA……………………. DEFENDANTS

JUDGMENT

1. The Plaintiff, Edward Mwadena Tsutsu instituted this suit by a Plaint dated 9th April, 2014.  The Plaintiff is seeking for judgment against the Defendants for:

a) A permanent Injunction restraining the Defendants either acting by themselves, their employees, agents and/or servants and/or through any other means whatsoever from trespassing, alienating, encroaching, wasting, damaging, dealing and/or interfering with PLOT NO.378 MIKAHANI MAWEMABOMU/CHONYI ADJUDICATION SECTION and/or do issue direction compelling the Defendants, their servants, agents and/or employees to pull down their constructions and/or development lying on the Plaintiffs piece of land.

b) A declaration that the Plaintiff is the legal and beneficial owner of all that piece of land known as PLOT NO.378 MIKAHANI MAWEMABOMU/CHONYIadjudication in Rabai Kilifi County contained Land Adjudication Section of MIKAHANI/MAWEMABOMU/CHONYI adjudication section which said piece of land is comprised in a survey/demarcation records dated the 22nd day of February, 1984 registered in the land adjudication department registry at Kilifi.

c) Costs and interest

d) Any other relief the court may deem fit.

2. The Plaintiff’s case is that at all material times relevant to this Suit, he was the bona fide legal and beneficial owner of the Suit Land and states that the Land Adjudication Committee awarded him the land and is to continue utilize it till all the Land Adjudication Tribunal under the Land Adjudication Act Cap 284 Laws of Kenya is finalized.  The Plaintiff avers that sometime in or about August 2013, the Defendants without any colour of right and/or legal claim and/or justification whatsoever moved into the Suit Land and started cultivating and/or using it.  The Plaintiff contends that his tenure and right over the Suit Land is unfettered, the demarcation of boundaries thereon having been clearly and completely identified by the Adjudication Tribunal.  It is the Plaintiff contention that the Defendants’ actions amount to trespass and have denied him the right of use and enjoyment of the land.

3. The Defendants were served with summons to enter appearance but did not enter appearance or file defence and upon request by the Plaintiff; interlocutory judgment was entered against the Defendants on 22nd June, 2017.  The Suit proceeded for formal proof on 1st November, 2017 when the Plaintiff testified and did not call any witness.

4. The Plaintiff relied on his witness statement dated 9th April 2014 and stated that the Suit Land was their ancestral land which was used for cultivation by his grandfather and later his father and that he took over it upon their demise.  He states that during the process of demarcation, his name was recorded in the adjudication record as the owner of the land and that the same has been under his possession until August 2013 when the Defendants without any justifiable reason, forcibly invaded and trespassed upon the Suit Land and thereby denied him the use and enjoyment thereof.  The Plaintiff further states that he lodged a complaint over the trespass against the Defendants before the area chief who resolved that the Defendants had no claim over the Suit Land but the Defendants have persisted with their trespass and continue to cultivate the land to the Plaintiff’s detriment.  The Plaintiff therefore decided to file this Suit and prays for the reliefs sought herein.

5. The Plaintiff produced a copy of a confirmation note dated 22/2/1984 from the Ministry of Lands, Lands Adjudication Department showing that the Suit Land is registered in the Plaintiff’s name.  He also produced letter dated 28th March, 2014 from M/s Marende Birir & Company Advocates to the District Land Adjudication and Settlement Officer seeking for consent to sue which was duly acknowledged as well as demand notices issued to the Defendants.

6. The Court has carefully considered the evidence on record.  The issue that calls for determination is whether the Plaintiff has established that he is the owner of the Suit Land and whether the Defendants have trespassed thereon.

7. The Plaintiff has tendered documentary evidence that show that he is the registered owner of the Suit Property.  The Plaintiff has also shown that he sought for and was granted consent from the Adjudication Officer to institute these proceedings. The Plaintiff has stated that the Defendants have without any colour of right trespassed on the Suit Property.  The Plaintiff’s evidence remains uncontroverted.  The Defendants’ actions on the Plaintiff’s land are unlawful  I find the evidence on record sufficient to prove that the Plaintiff is the rightful owner of the Suit Property and that the Defendants have jointly and severally trespassed into the Plaintiff’s property and the Plaintiff is therefore entitled to the orders sought in the Plaint.

8. The upshot of this is that this Court is satisfied that the Plaintiff has proved his case against the Defendants on a balance of probabilities. Judgment is entered for the plaintiff against the Defendants jointly and severally in the following terms:

a) A declaration that the Plaintiff is the legal and beneficial owner of all that piece of land known as PLOT NO.378 MIKAHANI MAWEMABOMU/CHONYI ADJUDICATION section in Rabai, Kilifi County.

b) An order for eviction compelling the Defendants, their servants, agents and/or employees to pull down their constructions and/or structures and/or developments lying on the Plaintiff’s land forthwith and in any case within 60 days from the date of delivery of this judgment failing which the Plaintiff to remove the said structures/developments at the Defendants’ expense.

c) A permanent injunction restraining the Defendants either by themselves, their employees, agents and/or servants from trespassing, alienating, encroaching, wasting, damaging and/or interfering with the Plaintiff’s quiet and peaceful occupation of PLOT NO.378 MIKAHANI MAWEMABOMU/CHONYI ADJUDICATION SECTION

d)  Costs of the suit

e) Interest on (d) above

Delivered, signed and dated at Mombasa this 19th February, 2018.

__________________

C. YANO

JUDGE