Hellen N. Mbesi v Wycliffe Mathias Muniafu, Emmanuel Mutongwa & Bramwel Mwalakha Wainga [2015] KEHC 1744 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

LAND & ENVIRONMENT CASE NO.5 OF 2015

HELLEN N. MBESI……………………...…………………..…………PLAINTIFF

VERSUS

WYCLIFFE MATHIAS MUNIAFU…………..……………..…..1ST DEFENDANT

EMMANUEL MUTONGWA……………………………….….2ND DEFENDANT

BRAMWEL MWALAKHA WAINGA…………………….….....3RD DEFENDANT

JUDGEMENT

The Plaintiff filed this suit against the defendant and he prays for a permanent injunction to issue against the defendants restraining them from encroaching and/or dealing or interfering with Land Parcel Number Bokoli/Kituni/1192.  He also prays for costs and interests of the suit.

The defendants filed their defence on 3rd March, 2015.  They denied the allegations of the plaintiff.  They also denied that the plaintiff is the owner of Bokoli/Kituni/1192.  They completely denied having ever encroached on the suit land.

This case was fixed for hearing on 1/10/2015.  Mr. Makokha learned Counsel for the plaintiff told the Court that he was called by Mr. Watanga who told him that Mr. Atanga for the defendant had called him and said that he (Mr. Atanga) was unwell.

Mr. Makokha said that he was ready to proceed and had witnesses ready for the case.

I ruled that the sickness of Counsel was excusable.  But the fact that his client was not in Court was not at all excusable.  There was absolutely no reason why he was not in Court.  I ordered that the suit do proceed for hearing.

Mr. Makokha learned Counsel called the plaintiff who told the Court that on 30/5/2001, he bought land from Jotham Masaka Khaemba.  The land bought was one acre.  He produced an agreement for sale.  He said that he went to the Land Control Board.  He was later issued at title deed.  The land is Bokoli/Kituni/1190, he produced the title as exhibit No.2.  He said that the people he sued did not sell the land to him.  He said that these people have chased him from the land.  He said that he reported the issue to the Chief.  The plaintiff said that the defendant have prevented him from using his land.  That they have planted sugarcane on the land.  He produced photographs of sugarcane on the land.  The plaintiff told the Court that he would like the Court to issue an order preventing the defendants from interfering with the plaintiff’s land.  He prays for costs and mesne profits.

There was no appearance for the defendants.  Mr. Makokha learned Counsel for the defendant prayed that since the defendant did not come to Court, that the case be closed and he prayed for a judgement date.

Having heard the plaintiff and having perused the documents produced by the plaintiff and there being no opposition from the defendants I allow the prayers prayed in the plaint with costs to the plaintiff.  I will award no mesne profits as none was proved before me.  It is so ordered.

DATED at BUNGOMA this 28th day of  October,   2015

S. MUKUNYA

JUDGE