Joseph Masinde Busuru v Playton Leonard Wekesa & Paul Kituyi Ngosia [2015] KEHC 1699 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

LAND AND ENVIRONMENT CASE NO. 164 OF 2013

[Formerly Bungoma cmcc no. 898 of 2011]

JOSEPH MASINDE BUSURU …………………..PLAINTIFF

VERSUS

PLAYTON LEONARD WEKESA .……… 1ST DEFENDANT

PAUL KITUYI NGOSIA ………………….. 2ND DEFENDANT

JUDGMENT

[1].The plaintiff filed this suit against the defendant and alleged that the 1st defendant unlawfully and without colour of right trespassed on land parcel no. Ndivisi/Ndivisi/1725 and planted sugar cane and maize thereon without the consent and/or authority of the plaintiff.  That the 1st defendant has denied the plaintiff access of his land and that the plaintiff has suffered loss.  The plaintiff therefore sued for a permanent injunction restraining the defendant whether by himself, his agents, servants and/or relatives from tilling, ploughing, trespassing or attempting to trespass and  remaining on the  aforementioned parcel of land and he prays for removal and/or cancellation of the caution lodged on the said land and  declaring the plaintiff as the  absolute registered owner of the suit land Ndivisi/Ndivisi/1725.

[2].The defendants filed a joint defence.  The 1st defendant contends in his  defence  that he utilizes the  suit land. That he purchased   the same from Lawrence Simiyu Nandasaba, Judith Wafula Simiyu and Mershack Nandasaba.  The defendant further avers that he bought the suit land in 1994 and has resided on the suit land and has thus acquired proprietary rights under adverse provision.

[3]. When this case came up for hearing the plaintiff appeared but the defendant did not appear.  He was served with the hearing notice on 18. 5.2015.  The plaintiff Mr. Joseph Masinde Busulu gave evidence and he said he sued the defendant as the one who took his land and prevented him from working on his land Ndivisi/Ndivisi/1725. He said he has a title and was issued on 12. 2.2009.  He said he   paid the entire purchase price.  He said the land was a subdivision of land parcel Ndivisi/Ndivisi/220. He   produced green card  of the same. The plaintiff said  that he was aware of civil case no. 26 of 2010 in which  the  1st defendant  has  sued  one Lawrence Simiyu Nandasaba for a refund of kshs. 70,000/= purchase price.  He produced the pleadings of that case as plaintiff exhibit 8.  He prayed for the orders prayed in his plaint and for a   removal of the caution imposed on his land by the defendants. He asked for the costs and mesre profits from 2009 to now.

[4].  The plaintiff called his witness Margaret Nandasaba  who said  that she was a witness of the  sale  agreement between the plaintiff and the  seller who was her  husband.  She told the court that the plaintiff paid all the money and was  given the title. However she said that the land now  is being used by the   1st defendant.  She averred that the land  was never sold to the  1st defendant.

[5]. The  2nd witness wasMr.  Lawrence Simiyu Nandasaba who said that he was also a witness in the agreement on  14. 1.2009.  he said that  his  father sold one (1) acre to the  plaintiff for Kshs. 190,000/=.  He said that he  knew of a case at Webuye where he has been sued for Kshs. 80,000/- by the defendant. That, that case was  about purchase price of parcel  Ndivisi/Ndivisi/1725 where the 1st defendant herein needs refund.  That the case is still pending at  Webuye. He stated that the land is being used by the 1st defendant who is now preparing to plant sugar cane. He said  that the land Ndivisi/Ndivisi/1725 belongs to the plaintiff.

[6]. After the close of the plaintiffs case the defendant who was not present and who was aware  of the hearing date offered no evidence.  The counsel for the defendant prayed that the case for the defendant be deemed as closed.  And it was so closed and the suit was set down for judgment today.

[7]. Having heard the evidence of the plaintiff and the witnesses and there being no  contrary  evidence from the defendant I am convinced that the plaintiff has proved his case on  the required standards and I  allow the prayers in the suit. Other than the  prayers of  mesne profit since  none was proved before me.  The plaintiff shall have the costs of the suit.

DATED at BUNGOMA this 28th day of October 2015.

S. MUKUNYA

JUDGE