Emily Nasimiyu Buchunju v Dickson Simiyu [2013] KEHC 1998 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

ENVIRONMENT AND LAND CASE NO. 49 OF 2012

EMILY NASIMIYU BUCHUNJU …........................... PLAINTIFF

VERSUS

DICKSON SIMIYU.........................................…DEFENDANT

JUDGMENT

Then plaintiff has brought his claim against the defendant Dickson Simiyu for;

“An injunction order restraining the defendant whether  by himself or his agents  and/or servants from tilling, working or howsoever encroaching on the plaintiff's parcel  of land.”

She also prayed  for costs of the suit and any other  relief the court deems just to grant.

The defendant was served with summons to enter appearance, plaint and documents on 14. 9.2012 as evidenced  by affidavit of  service on  record.  He never  entered appearance thus the suit proceeded unopposed.

On 29th May 2013 the plaintiff testified how she  acquired  this land.   She got this land as a  share from her father's land.  She had earlier presented her case before the Land Disputes Tribunal as her step brothers did not want  her to inherit a share of her father's land.  The plaintiff produced the proceedings of the tribunal as P.Ex. 3.  Thereafter her father signed for her tranfers documents for which she got title comprised in L.R. Ndivisi/Muchi/7259.  The surveyor also came to the land and planted boundaries.  The defendant planted sugar cane in 2011 alongside other crops.

The plaintiff  sent a  demand letter produced as exp. 4 which elicited no response from the defendant. She prayed for a permanent  injunction to  stop the defendant from using her land.

The plaintiff called Albert Nyongesa Munyasi as PW2.  PW2 is her uncle.  He confirmed the plaintiff's evidence and added that the defendant is not  related to the  plaintiff in any way.

Mr. Murunga advocate for the  plaintiff asked  the court to close the defence  case since no evidence was adduced which this court did.  Thereafter   he filed  written  submissions in support of his client's case.  He submitted that the plaintiff has proved her case within the required standards.  He relied  on the Court of Appeal  decision of  Michael Githinji Kimotho Vs. Nicholas Muratha Mugo NBI. Civl Appeal No. 53 of 1995annexed to his submissions.

I have looked at the evidence on record and  the exhibits annexed.  During the hearing before The  Tribunal, the plaintiff's father testified that he had no objection to the plaintiff getting ¼ acre  from  L.R. Ndivisi/Muchi/6382. Neither did her step brothers object to the same. This confirms  her evidence that her father  signed documents  transferring land to her.

In the cited case supra,the appeal was dismissed because the court found the Appellant  being a  squatter, he had no locus standi to challenge the title of the  Respondent nor right to deny him the protected rights  of a proprietor under Sec. 28 of the Registered Land Act. Similarly, the plaintiff herein was given land by her father. She holds a title as registered proprietor and is thus entitled to  quite possession and user as provided  in Sec.  24 & 25 of the Land Registration Act.

In view of the fact  that the  evidence  of the plaintiff is not controverted, I hold that  her  rights  to use  L.R. Ndivisi/Muchi/7259should  not be infringed by the defendant or any other person without her consent and authority.  I am satisfied that she has proved her case on a balance of probability. I accordingly allow  her  claim as  presented.  The plaintiff testified that there was  cane planted on this land.  If the defendant has developed the cane – most likely now in ratoon stage, I allow him time within which to harvest the said cane only which should not exceed a period of 6 months. If there is no cane under development, he should  stop any fresh development/cultivation of the land forthwith.  I make  no order on costs.

JUDGMENT DATEDANDDELIVERED this 8thday of October  2013.

A. OMOLLO

JUDGE.