Joseph Mwania Nziu v Kyalo Ngumbi [2018] KEELC 4328 (KLR)

REPUBLIC OF  KENYA

IN THE ENVIRONMENT AND  LAND COURT AT  MAKUENI

ELC  CASE  NO 328 OF 2017

JOSEPH MWANIA NZIU...........................................PLAINTIFF

VERSUS

KYALO NGUMBI ....................................................DEFENDANT

JUDGMENT

1. The plaintiff herein is a farmer from Kalawa. He owns land parcel number Kalawa/Kathulumbi/387 which he accuses the defendant having trespassed into.

2. By his  plaint dated  31st July, 2017  and   filed  In  court  on the  22nd  August, 2017  the plaintiff  prays  for judgement against the defendant for:-

1. An  order  of permanent injunction restraining  the  defendant himself or his servants from trespassing and carrying on illegal activities on parcel No. Kalawa/Kithulumbi/387 belonging to the  plaintiff.

2. Costs of the suit.

3. On 23rd August, 2017 the defendant was served  with summons to enter appearance and to file his defence.  His failure to do so resulted in this court directing on the 16th November, 2017 that matter do proceed as undefended suit.

4. During  the hearing of  the suit, the plaintiff produced title deed for Kalawa/Kathulumbi/387 as PEx no.1. He said that the defendant has built on his land and that he hired a surveyor who showed him the boundary. He added that the defendant later uprooted the markings that the plaintiff had erected on the boundary.

5. The plaintiff  prayed  for judgment against the defendants.

6. In his written submissions filed in court on 20th December, 2017, Mr.  Tamata for the plaintiff urged the court to permanently restrain the defendant and his agents from trespassing into the plaintiff’s land parcel number Kalawa/Kithulumbi/387.

7. Having  read  the evidence  on record, I do note that whereas the plaintiff says  that land parcel number Kalawa/Kithulumbi/387 is his property and  went ahead to produce title deed for the suit property as PEx no. 1, paragraph 5 of his plaint shows that the suit property is registered in the defendant’s name.  Parties are bound by the pleadings.  The evidence on  record therefore  does not support the averments  in paragraph 5 of the plaint.  No application was ever made to amend the said paragraph 5 of the plaint.  In the circumstances, the defendant cannot be restrained from carrying out activities in land parcel number Kalawa/Kithulumbi/387 which  the  plaintiff has averred that it to belongs to him. As such, the plaintiff   has failed to prove to the court that on a balance of probabilities, he has a cause of action against the defendant.  His claim must therefore fail with no orders as to costs.  In the circumstances, I dismiss the plaint.

Signed, dated and delivered at Makueni on 21st  day of  February, 2018

MBOGO CG

JUDGE

In the  presence of;

Mr. Kwemboi Court Assistant

Mr. Tamata for the  plaintiff

MBOGO C.G

JUDGE

21/2/2018