Egerton University v Mohamed Salim Hussein, Glads Wanjiku, Charles Mali Kaindi, Joseph Kiplagat, Martin Musymi Kioko, Julius Yeri, John Otieno Ononyo, Zakaria Kariuki, David Njoroge Kamau, Charles Kahindi, Eunice Kawira, Patrick Safari, Eliyah Mbugua Kamau, Halima Alio Bari, James Munyau, Jidraf Thiongo, Joseph Kiplangat, Susan Kubania, Joseph Kasere, Stephen Wachira, Paul Mwaniki, Veronicah Wambura, Jackson Muthiani, James Ngure, Jackson Gitonga Kamau, Patrick Isaihi, Mtana Mwandizwe, Monicah Mweni Kenga, Joyce Waringa Gitau, Leonard Kombe Nzai, Alison Migwi, Edward Kiplagat Too, Jerald Mokaa, Ruth Mwihaki, Stephen Wangunyu Kuhura, Jackline Kambua Musyinal, Sarah Njambi Muhuri, Milcah Wanjiku Maina, Mathew Mbaruka Mutisya, Teresiah Nditi Kitili, Nicholus Ndambuki, Katana Muthanga, Francis Njuguna, Samson Karau, Agnes Wanjiru Kamau, Scholastica Mwenda Msau, Salim Ahmed Shali, Mariamu Mzee Omar, Karabu Kadenge, Benard Kiyalo Mwinde, Kenedy Kaunda Musyinal, Edward Kiplagat Too, Mohamed Bwena, Abdallah A. Awadh [2015] KEHC 6955 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC CIVIL CASE NO.97 OF 2014

EGERTON UNIVERSITY..............................................................PLAINTIFF

=VERSUS=

1. MOHAMED SALIM HUSSEIN

2. GLADS WANJIKU

3. CHARLES MALI KAINDI

4. JOSEPH KIPLAGAT

5. MARTIN MUSYMI KIOKO

6. JULIUS YERI

7. JOHN OTIENO ONONYO

8. ZAKARIA KARIUKI

9. DAVID NJOROGE KAMAU

10. CHARLES KAHINDI

11. EUNICE KAWIRA

12. PATRICK SAFARI

13. ELIYAH MBUGUA KAMAU

14. HALIMA ALIO BARI

15. JAMES MUNYAU

16. JIDRAF THIONGO

17. JOSEPH KIPLANGAT

18. SUSAN KUBANIA

19. JOSEPH KASERE

20. STEPHEN WACHIRA

21. PAUL MWANIKI

22. VERONICAH WAMBURA

23. JACKSON MUTHIANI

24. JAMES NGURE

25. JACKSON GITONGA KAMAU

26. PATRICK ISAIHI

27. MTANA MWANDIZWE

28. MONICAH MWENI KENGA

29. JOYCE WARINGA GITAU

30. LEONARD KOMBE NZAI

31. ALISON MIGWI

32. EDWARD KIPLAGAT TOO

33. JERALD MOKAA

34. RUTH MWIHAKI

35. STEPHEN WANGUNYU KUHURA

36. JACKLINE KAMBUA MUSYINAL

37. SARAH NJAMBI MUHURI

38. MILCAH WANJIKU MAINA

39. MATHEW MBARUKA MUTISYA

40. TERESIAH NDITI KITILI

41. NICHOLUS NDAMBUKI

42. KATANA MUTHANGA

43. FRANCIS NJUGUNA

44. SAMSON KARAU

45. AGNES WANJIRU KAMAU

46. SCHOLASTICA MWENDA MSAU

47. SALIM AHMED SHALI

48. MARIAMU MZEE OMAR

49. KARABU KADENGE

50. BENARD KIYALO MWINDE

51. KENEDY KAUNDA MUSYINAL

52. EDWARD KIPLAGAT TOO

53. MOHAMED BWENA

54. ABDALLAH A. AWADH ABUBAKAR

55. BADIRIA MOHAMED ABDALLA

56. LUCY WANGUI WANJOHI

57. RICHARD MACHARIA NDICHU

58. KIGEE KARAU

59. ANN MUSANGI MALUKI

60. MOHAMED FAMAU

61. ANTONY KIHARA MBUGUA

62. CONSOLATA KAGURE GITAU...........................DEFENDANTS

J U D G M E N T

Introduction:

1. In the Plaint dated 21st May, 2014, the Plaintiff is seeking for an eviction order against the Defendants.

2. The Plaintiff has averred in the Plaint that it is the legal owner of all that parcel of land known as 209163/D Lamu West District measuring approximately 170 hacters pursuant to a letter of allotment dated 30th November 2001.

3. It is the Plaintiff's case that in blatant disregard to the Plaintiff's ownership and interest in the suit land, the Defendants have moved in and proceeded to put up structures in the suit land without the Plaintiff's consent; that the Defendants suit in ELC Civil Suit No. 67 of 2013 was struck out and that the Defendants have refused to move out of the suit land despite the striking out of their suit.

4. In their Defence dated 9th December 2014, the Defendants averred that although their suit in ELC Civil Suit Number 67 of 2013 was struck out, that does not restrain them from pursuing their rights of ownership by virtue of the doctrine of adverse possession; that the suit property isTrust land held by the Settlement Fund Trustees and that they are entitled to it as residents of the area.

The Plaintiff's case:

5. The Plaintiff's Deputy Vice Chancellor, Administration and Finance, PW1, informed the court that the Plaintiff applied to the government for land for research purposes.

6. It was his evidence that the Plaintiff was offered 500 hectares of unalienated land in 1989 for research and training in Lamu District and the Plaintiff moved to secure the title to the suit land.

7. According to PW1, the suit property was surveyed in the year 2007. PW1 informed the court that the Plaintiff is still in the process of acquiring the title deed.

8. It was the evidence of PW1 that on 30th November 2001, the government, vide an allotment letter of the same date allocated the Plaintiff 170 hectares whereafter the Plaintiff paid the requisite fees of Kshs.3,530 in satisfaction of the conditions set out in the allotment..

9. PW1 informed the court that although the Plaintiff was allocated 500 hectares in 1989, it ceded 330 hectares to the squatters, including the Defendants, for settlement.

10. Upon receipt of the letter of allotment, it was the evidence of PW1 that the University fenced off its 170 hectares and that the Plaintiff has always been in occupation and possession of the same.

11. PW1 informed the court that in the numerous meetings that the Plaintiff held with the Defendants, including the meeting of 30th May 2012, the Defendants did not contest or dispute the Plaintiff's right and interest in the suit property and in fact agreed to vacate the land.

12. However, it was the evidence of PW1 that the Defendants proceeded to sue the Plaintiff herein in Malindi ELC Civil Suit Number 67 of 2007 opposing the Plaintiff's intention to evict them. PW1 informed the court that the Defendants' suit was struck out with costs.

13. It was the evidence of PW1 that the Plaintiff is the legal owner of the suit land and that the Defendants are mere trespassers with no known interest or rights in the land.

14. PW1 produced the documents in support of the Plaintiff's claim as PEXB 1-4.

15. In cross-examination, PW1 informed the court that at the time the Plaintiff was allocated the suit property, there were no squatters on the land. However, the Defendants later on put up temporary structures on the land.

The Defendants' case:

16. The Defendants did not testify in this matter. Indeed, the Defence that was filed on 9th December 2014 was never served on the Plaintiff or its advocate.

17. The Plaintiff's suit therefore proceeded as undefended.

18. The Plaintiff's advocate filed submissions and authorities which I have considered.

Analysis and findings:

19. PW1 produced in evidence the letter dated 12th September 2001 by the Plaintiff and addressed to the Director, Land Adjudication and Settlement in which the Plaintif was seeking to be allocated 500 hectares of land in Lamu as per the recommendations of the District Development Committee, Lamu.

20. In his letter dated 2nd November 2001, the Director of Land Adjudication and Settlement acceded to the said Application. A letter of allotment reference number 209163/D dated 30th November 2001 was then issued to the Plaintiff for unsurveyed land measuring approximately 170 hectares.

21. One of the conditions in the letter of allotment required the Plaintiff to pay to the Government Kshs.3,530. The Plaintiff paid the said amount on 4th December 2001 vide a banker's cheque number 00506998.

22. The evidence before this court shows that the suit property was surveyed on 22nd September 2007 vide survey plan number 470/143.

23. The Defendants have not controverted the Plaintiff's evidence. Indeed, the Defendants filed a suit in this court being Malindi ELC Civil Case No. 67 of 2013 claiming that they are the proprietors of the suit property. This court struck out the Defendants' suit on 19th December 2013 in the following terms;

“The Plaintiffs have not shown or averred in the Plaint their proprietary interests or rights over the suit property which they have admitted to be Government land”.

24. In view of my Ruling and Judgment in Malindi ELC Civil suit no 67 of 2013 and the evidence before me, I find and hold that the Plaintiff is the owner of the suit property. The Defendants are trespassers on the said property and should give vacant possession forthwith.

25. For these reasons, I allow the Plaintiff's Plaint dated 21st, May 2014 in the following terms.

(a) An order of eviction be and is hereby issued against the Defendants to give to the Plaintiff vacant possession of land known as 209163/D Lamu West District measuring approximately 170hectares.

(b) An order of permanent injunction be and is hereby issued restraining the Defendants, their agents, servants or employees from interfering with the Plaintiff's quiet enjoyment and dealings in land known as 209163/D Lamu West District measuring approximately 170hectares.

Dated and delivered in Malindi this 5th day of June,2015.

O. A. Angote

Judge