Elizabeth Ndulu Mathuva v Joseph Mbiu Muthiani [2018] KEELC 3368 (KLR)

REPUBLIC OF  KENYA

IN THE HIGH COURT  IOF KENYA  AT MAKUENI

ELC  NO. 152 OF 2017

FORMERLY MACHAKOS   ELC NO. 221 OF 2016

ELIZABETH NDULU MATHUVA.........................PLAINTIFF

VERSUS

JOSEPH MBIU MUTHIANI...............................DEFENDANT

JUDGMENT

1. The  plaintiff  is a farmer and a resident of Thomeandu Village, Kikoko location.  She is also the registered owner of land parcel number Makueni Kalongo /2099.

2. She accuses the defendant  of having  trespassed into the said land parcel number  Makueni/Kalongo/2099.

3. By her  plaint dated 8th December, 2016 and filed in court on even date, the plaintiff prays  for judgment for;

1. An order of eviction of defendant from parcel number Makueni/Kalongo/2099

2. Cost of the suit

4. The  matter  proceeded as undefended  suit  after the defendant who entered on the 22nd December, 2016  through Nathan Mbullo and Associates Advocates failed to file defence within the prescribed  period.

5. In her evidence  in court, the plaintiff accused the defendant who is the nephew of her late husband  of having taken over her farm. She went on to say that the defendant farms on the land in question. She said that the defendant has cut down  trees on her land.

6. The plaintiff produced a copy of title deed, demand letter  issue to the defendant as Pex No. 1 and 4 respectively. She also produced a copy of  grant of letters of administration, a copy of confirmation of the grant and a copy of certificate of death as PexNos. 2, 3 and 5.

7. Although  the plaintiff’s counsel had indicated that he was going to file submissions, he did not do so.

8. Nevertheless, a perusal of the evidence and the exhibits produced by the plaintiff clearly shows that she is the registered owner of the said land parcel number Makueni/Kalongo/2099. There is also evidence  to show that the defendant has indeed invaded her farm and proceeded to cut down her trees.

9. Arising from the above, my finding is that the plaintiff has on a balance of probabilities satisfied this court that she has a cause of action against the defendant. In the circumstances, I hereby proceed to enter judgment for her and against the defendant in term of prayers 1 and 2 of her plaint. For good measure, I direct that prayer 1 to be carried out in accordance with section 152E of the Land Act no. 6 of 2012 as amended by the Land Law Amendments of 2016.  It is so ordered.

Signed, Dated and Delivered at Makuenithis 17th day of April, 2018

MBOGO C.G

JUDGE

In the  presence of;

1. Mr.  Tamata for plaintiff

2.  Mr.  Kwemboi Court Assistant

No appearance for the defendant

MBOGO C.G, JUDGE

17/4/2018