James Katua Timothy v Mutunga Matata Kituma [2017] KEELC 55 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND  LAND COURT AT MAKUENI

ELC NO. 12 OF 2017

JAMES KATUA TIMOTHY ------------------------------------------PLAINTIFF

VERSUS

MUTUNGA MATATA KITUMA ----------------------------------- DEFENDANT

JUDGEMENT

1. James Katua Timothy who is the plaintiff  herein is a cashier  employed by Nakumatt Supermarket. He says that he is the owner of plot number 1978situated at Emali Trading Centre.  He has  sued  Mutunga  Matata  Kituma the  defendant herein for  trespassing upon the said plot number  1978 .

2. By his plaint dated  10/2/2017  and filed  in court  on 20/2/2017 the plaintiff  prays  for judgement against the defendant for orders:-

a) A declaration that plot no 1978 situated at Emali Town Centre is the property of the plaintiff.

b) A permanent injunction restraining  the defendant either by himself, his servants, relatives and/or agents from encroaching  on, trespassing  on, building on heaping  soil on alienating and/or interfering in any manner with the plaintiff’s  peaceful  possession and/or occupation of Plot No. 1978 situated  at Emali Town Centre.

c) A demolition order

d) Costs and interest  of the suit

e) Any other further relief  that the honourable court  may deem fit and just.

3. The   defendant  was served  on 10/3/2017  with summons to enter  appearance  and to file  his  defence  as can be  seen  from the affidavit  of service  dated 3/5/2017  and filed on court on  8/5/2017.  Consequently the court  ordered  that this matter  proceeds to formal proof after  the defendant failed to enter appearance and to file his defence.

4. When the matter  came up for hearing on 20/9/2017the plaintiff  adopted his statement which  he recorded on the 10/2/2017.   In  his evidence  in chief,  the plaintiff   told the court that he bought  the plot  in question from  John Kispan  vide a sale agreement dated 5/11/2014 (PEXno.1).  He went on to say that he is yet to  transfer the plot  into  his name  due to  lack  of funds  and as  such, the plot is still registered in John Kispan(PW1)  as can be  seen from  the certificate of search  produced  as Pex No. 2. He went  on to produce an allotment letter  in the name of J.K Yiankaso as PEX no.  3.

5. It was his evidence that when he found the defendant having  trespassed into his land, he saw the ward administrator who issued him with the letter dated 15/9/2015 (PEX no.4) and addressed to the   defendant.  He went on to say that he served the defendant  with a demand  letter  to  vacate the plot (PEX no .5)and  to remove his illegal building and building materials from the   plot but he did not respond.

6. The plaintiff’s  evidence is supported by the  evidence on John Kispan Yiankaso (PW1)  who told  the court that the  plot that he sold to plaintiff  was allocated to him by  Olkejuado County Council on 17/3/2016.  The witness went on   to say that the  site was  thereafter  identified  to  him by  the surveyor of the County  Council on  the 22/5/2011 who thereafter signed and validated  the sale.

7. That on the 5/11/2014 he and the plaintiff entered into an agreement upon which he took the plaintiff  to the site where he identified the beacons to him.  It was his evidence that he urged the plaintiff to build but he later got a complaint from the latter that the defendant herein had laid a claim onto  the  plot.  He said that he met Mutungaand also the administrator who ruled in his favour.  He revealed that even though the plot is registered in his name, the plot belongs to the plaintiff.

8. The plaintiff’s counsel filed  her written submissions  on the 19/10/2017. She urged the court to rule in favour of the plaintiff since he had proved his case on a balance of probability.

9. Having read the evidence  on record and  the submissions filed,  I  have no doubt  that plot number  1978 belongs to the plaintiff  even though it is registered in the   name  of Kispan(PW1).I am in agreement with plaintiff’s counsel that the plaintiff has proved his case against the defendant on a balance of probabilities.  In the circumstances, I hereby proceed to enter judgement for him and against the defendants as follows:-

a) Plot no 1978 situated at Emali Town Centre be and is hereby the property of the plaintiff.

b) A permanent injunction be and is hereby  issued  restraining  the defendant either by himself, his servants, relatives and/or agents from encroaching  on, trespassing  on, building on heaping  soil on alienating and/or interfering in any manner with the plaintiff’s  peaceful  possession and/or occupation of Plot No. 1978 situated  at Emali Town Centre.

c) An order of  demolition be and is hereby allowed.

d) Costs and interest  of the suit

It is so ordered.

Signed, Dated and Delivered this 7th  day of  November, 2017

MBOGO C.G

JUDGE

Mr.  Hassan holding  brief for Mrs.  Nzao for the plaintiff

Mr.  Kwemboi  Court Assistant

Plaintiff    present

MBOGO C.G

JUDGE

7/11/2017