John Mutisya Kioko v Samuel Wambua Nyungu & John Mwinzi Nyungu [2018] KEELC 4369 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 242 OF 2017

JOHN MUTISYA KIOKO...............................PLAINTIFF

VERSUS

SAMUEL WAMBUA NYUNGU...........1ST DEFENDANT

JOHN MWINZI NYUNGU..................2ND DEFENDANT

JUDGMENT

1. In the Plaint dated 16th May, 2017, the Plaintiff averred that at all material times, the Plaintiff was the lawful and legal owner of parcel of land known as Mitamboni/Mbee/1681 measuring 0. 11Ha (the suit land); that he bought the said land from Amos Muli Nyungu and that the Defendants have now illegally encroached on the said land.

2. The Plaintiff is seeking for a permanent injunction restraining the Defendants from interfering with the suit land and for an order of eviction of the Defendants.  The Plaintiff is also seeking for an order of general damages for trespass.

3. Although the Defendants were served with the Summons to Enter Appearance and the Plaint, they neither entered appearance nor filed a Defence.

4. The matter proceeded for hearing on 16th October, 2017.

5. The Plaintiff, PW1, informed the court that he bought the land from Amos Muli Nyungu and that the land was transferred to him. The Plaintiff produced the copies of the Sale Agreements that he entered into with the said Amos Nyungu and the Title Deed that was issued to him on 3rd November, 2014.

6. In view of the fact that the Plaintiff is the registered proprietor of the suit land, and in the absence of evidence to show that he procured the said Title Deed fraudulently or by mistake, I find that the Plaintiff has proved his case on a balance of probabilities.

7. I therefore allow the Plaint dated 16th May, 2017 as prayed.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 2ND DAY OF MARCH, 2018.

O.A. ANGOTE

JUDGE