GEORGE ONJWELI ONDWALI & ANOTHER vs TERESA KWAMBOKA MATAGARO & 2 OTHERS [2010] KEHC 2319 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII

Civil Case 195 of 2009

1. GEORGE ONJWELI ONDWALI

2. CHARLES LUMUMBA ONDWALI……………....PLAINTIFF

VERSUS

1. TERESA KWAMBOKA MATAGARO

2. JOHN OBINCHU

3. ONDUSO ONTUNYA……………………………DEFENDANT

JUDGMENT

By a suit commenced by a plaint dated 25th September, 2009 and filed in court on the even date, George Onjweli Ondwali and Charles Lumumba Ondwali hereinafter “the Plaintiffs” sought from Teresa Kwamboka matagaro, John Obinchu and Onduso Ontunya hereinafter “the defendants” a permanent injunction restraining them, their servants and or agents from invading, trespassing into land Parcel Wanjare/Bokeire/4410 hereinafter “the suit premises”, an eviction order against them, their servants and or agents, mesne profits, costs of the suit and interest.

Apparently, the plaintiffs are the registered proprietors of the suit premises. The suit premises measure approximately 4. 18 hectrares. Sometime in the month of June and July, 2008 the defendants without any colour of right invaded the said suit premises and forcefully started tilling it for their own benefit to the detriment of the defendants. Despite several verbal and written notices to the defendants to quit the suit premises issued by the plaintiffs, the defendants have refused, failed and neglected to vacate the same. The defendants’ illegal acts aforesaid have therefore caused massive destruction of the suit premises and have subjected the plaintiffs and their families to heavy loss, hence this suit.

The suit papers were duly served on the defendants on or about 30th September, 2009 going by the affidavit of service on record sworn by one, Elijah Gekonge Nyangau a process server and filed in court on 19th October,2009. The defendants failed to enter appearance or file a defence in good time as required by the civil procedure rules. Accordingly on 19th October, 2009, the plaintiffs applied for interlocutory judgment in default of appearance and or defence. On 30th October, 2009, the Deputy Registrar of this court duly entered interlocutory judgment as requested. Subsequent thereto and without first setting aside the exparte judgement, the 1st defendant through Messrs Zablon Mokua and Co. Advocates, purported to file an appearance and statement of defence. In the main, her defence was that she was a stranger to the suit. That she bought land parcel Wanjare/Bokeire/459 and took possession of the same in 1995. She has never been to or invaded the suit premises or indeed any other parcel of land.

On 18th November, 2009, this suit was set down for hearing by way of formal proof, and the 1st defendant was duly served with the hearing notice. On 9th March, 2010, the hearing commenced before me. The plaintiffs were represented by Mr. Bigogo,learned counsel whereas the 1st defendant was represended by Mr. Okenye, learned counsel. Mr. Okenye then indicated that since the record showed that an interlocutory judgement had been entered and since the same had not been set aside he could not effectively participate in the proceedings. Accordingly he allowed the suit to proceed as undefended.

The 1st plaintiff testified on behalf of himself and the 2nd plaintiff. He testified that they are jointly registered as owners of the suit premises whose title was issued to them on or about the 20th August, 2009. He tendered in evidence a copy of the title deed and a certificate of official search. He further testified that sometime in the months of June and July, 2008, he came from Kitale where he teaches only to find the defendants having invaded the suit premises. The defendants were not related to them at all. He gave them a verbal notice to vacate the suit premises but they refused to comply. It was then that he instructed their lawyers to issue a formal demand notice dated 5th August, 2009. Despite the said notice, the defendants still refused to move out and bring to an end their trespass. To date they still occupy and till the suit premises. They have denied the plaintiffs the use of the suit premises. It was for these reasons that the plaintiffs were praying for a permanent injunction an order of eviction, mesne profits, costs of the suit and interest. With that the plaintiffs closed their case. Mr. Bigogo sought and was allowed by this court to advance his client’s case further by way of written submissions. The same were subsequently filed which I have read and considered together with the authorities cited.

The issue for determination is whether the plaintiffs have established on a balance of probabilities that they are the registered proprietors of the suit premises and therefore entitled to the prayer in the plaint on account of the defendants being trespassers. The plaintiffs tendered in evidence a title deed which categorically shows that the suit premises is registered in their joint names. The title deed was issued to them on 20th August, 2009 by Kisii Land Registry. They also tendered in evidence a certificate of official search dated 8th march, 2010. The same clearly shows that the plaintiffs are still the registered proprietors of the suit premises as at that date. In my view therefore and taking into account the totality of the foregoing evidence which is unchallenged and or uncontested, the plaintiffs have shown beyond peradventure that they are the registered proprietors of the suit premises

The plaintiffs through unchallenged and uncontroverted evidence have been able to demonstrate to my satisfaction that despite being the registered proprietors of the suit premises they have been denied the occupation thereof and use of the same through the illegal acts of the defendants. The defendants trespassed into the suit premises and have since remained in occupation thereof to the detriment or disadvantage of the plaintiffs. Of course the hallmark of ownership of land is occupation and use of the same as encapsulated in sections 27, 28 and 29 of the Registered Land Act. In the circumstances of this case there is no reason legal or otherwise for the defendants’ continued occupation albeit illegally, the plaintiffs’ suit premises. I have perused the defence filed by the 1st defendant though not properly on record and I am satisfied that it does not at all displace the plaintiffs’ right to the use and occupation of the suit premises. The plaintiffs being the registered proprietors of the suit premises are entitled to enjoy all the proprietory rights that come with being such a registered proprietor of the suit premises. That being the case, the defendants have no right to be on the suit premises.

In the premises therefore, final judgment is hereby entered for the plaintiffs as against the defendants jointly and severally in terms that, a permanent injunction shall forthwith issue restraining the defendants, their servants and or agents from invading and or trespassing into land parcel No. Wanjare/Bokeire/4410. Within sixty(60) days of being served with the decree and or order herein, the defendants and their families should voluntarily vacate and hand over the suit premises with vacant possession to the plaintiffs failing which they will be forcibly and or forcefully evicted therefrom. Much as the plaintiffs had prayed for mesne profits, no evidence was led in that regard. It is as if the plaintiffs had abandoned the claim. I will therefore not grant the same. However the plaintiffs shall have the costs of this suit.

JUDGMENTDATED, SIGNED AND DELIVERED in court this 23rd day of April, 2010.

M.A. MAKHANDIA.

JUDGE.