Kapkoros Tea Factory Co. Ltd v Leonard Biwott,Leonard Turgut,Missoi Jeishi,Rafael Sandiko,Philip Turgut,Sara Mutai,Geoffrey Mutai,Daniel Sitonik,Samwel Korir,Baruise Cheruiyot,Robert Mutai,Josiah Soi,Zipporah Korir & Julius Chesimet [2018] KEELC 2222 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAROK

ELC SUIT NO. 183 OF 2017

KAPKOROS TEA FACTORY CO. LTD.......................................................PLAINTIFF

-VERSUS-

LEONARD BIWOTT.............................................................................1STDEFENDANT

LEONARD TURGUT............................................................................2NDDEFENDANT

MISSOI JEISHI.....................................................................................3RDDEFENDANT

RAFAEL SANDIKO..............................................................................4THDEFENDANT

PHILIP TURGUT..................................................................................5THDEFENDANT

SARA MUTAI........................................................................................6THDEFENDANT

GEOFFREY MUTAI.............................................................................7THDEFENDANT

DANIEL SITONIK................................................................................8THDEFENDANT

SAMWEL KORIR.................................................................................9THDEFENDANT

BARUISE CHERUIYOT.....................................................................10THDEFENDANT

ROBERT MUTAI.................................................................................11THDEFENDANT

JOSIAH SOI.........................................................................................12THDEFENDANT

ZIPPORAH KORIR............................................................................13THDEFENDANT

JULIUS CHESIMET...........................................................................14THDEFENDANT

JUDGEMENT

By an amended plaint dated 7th May, 2018 the Plaintiff commenced the suit herein seeking for orders of a Permanent Injunction restraining the Defendants whether by themselves, Agents, servants from invading, trespassing, grazing, cultivating and interfering with the Plaintiff’s quiet possession of land parcel No. CIS MARA/NKOBEN/2002andCIS MARA/NKOBEN/2003,costs of the suit and interest on the said costs.

It is the Plaintiff’s case that at all material times to the suit herein it was the beneficial owner and proprietor of the suit land which are known as LR CIS MARA/NKOBEN/2002and2003 which it utilizes for growing trees, tea farming and other related agricultural activities and it has enjoyed quite possession and occupation of the suit land.

The plaintiff contends that sometimes in September 2016 the Defendants illegally entered and/or trespassed on the aforesaid land with herds of cattle and flocks of sheep and they have continued to hold and graze them on the suit land and consequently they without authority started constructing temporary structures with the sole intention of claiming ownership of the suit.

The plaintiff averred that as a result of the Defendants action it has suffered loss and damage since the Defendants have deprived it of the use of the parcel of land that the Defendant occupy and graze their cattle.  That defendants have destroyed and/or brought down the Plaintiff’s perimeter wall and that the Defendants livestock have consumed and destroyed the artificial pastures that it had grown.

Even though the Defendants were served with the summons they failed to enter appearance and file a defence to challenge the plaint.

When the matter came up for hearing one Justus Yegon testified on behalf of the Plaintiff and in his testimony he stated that he is the Director of the Plaintiff Company and is familiar with the matter.   He stated that LR Cis Mara/Nkoben/2002 and 2003 belong to Kapkoros Tea Factory Company Limited he produced title deeds for both the parcels of land together with two certificates of search indicating that the two parcels of land are indeed registered in the name of the Plaintiff.

In his testimony PW1 (Justus Yegon) stated that because of the Defendants actions on encroaching the two parcels of land have denied them the use of the suit land and hence the filing of the suit.

Since the Defendants had failed and neglected to file a defence the Plaintiff’s evidence remains unchallenged and uncontroverted and in view of the above I find that the Plaintiff has proved its case on a balance of probability and I therefore enter judgment for the plaintiff in the following terms:-

1. A permanent injunction do issue restraining the Defendants by themselves, servants, agents and whomever is acting on their instructions from invading, trespassing, grazing, cultivating or in whichever way interfering with the Plaintiff’s quiet possession and use of LR No. CIS MARA/NKOBEN/2002 and CIS MARA/NKOBEN/2003.

2. That the Defendants are hereby ordered to move out of the said parcel of land voluntarily within 45 days from the date of the judgement in default the Defendants be evicted from the parcels of land which eviction be in conformity with the provision of section 152 (a) (b) of the Land Act.

3. Costs of the suit to the Plaintiff.

DATED, SIGNED and DELIVERED in open court at NAROK on this 26th day of July, 2018

MOHAMMED NOOR KULLOW

JUDGE

26/7/18

In the presence of:-

Mr Otieno for the plaintiff

N/A for the Defendants

CA:Chuma

MOHAMMED NOOR KULLOW

JUDGE

26/7/18