Konza Ranching & Farming Coop. Soc. Limited v Musau [2023] KECPT 412 (KLR)

Konza Ranching & Farming Coop. Soc. Limited v Musau (Tribunal Case 233/E022 of 2021) [2023] KECPT 412 (KLR) (Civ) (27 April 2023) (Ruling)

Neutral citation: [2023] KECPT 412 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 233/E022 of 2021

BM Kimemia, Chair, J. Mwatsama, Vice Chair, Beatrice Sawe, Fridah Lotuiya, P. Gichuki, Michael Chesikaw & Paul Otieno Aol, Members

April 27, 2023

Between

Konza Ranching & Farming Coop. Soc. Limited

Claimant

and

Joseph Mwando Musau

Respondent

Ruling

1. Matter for determination is Statement of Claim dated May 18, 2021 filed on May 19, 2021 to which Claimant avers he has and continues being registered owner of Plot number 1710 measuring 0. 7797 acres, title deed number No Konza/South Konza South Block 5(Konza)2160(O.3078Ha).A meeting was held on December 18, 2019 where members resolved that the Claimant’s land be subdivided into several plots and all made provision for public utilities.The Respondent participated in balloting and picked a ballot for his lawful and rightful share he has illegally encroached into Plot number 1710 measuring 0. 7797 acres, title deed number Konza/South Konza South Block5(Konza)2160 (O.3078Ha) and fenced it contrary to the fact the adjacent plot was set aside as a public utility.The Claimant wrote to the Respondent but he was adamant and even began developing the plot.The prayers by Claimant are:a.A permanent injunction restraining the Respondent, his assigns and/or servants from trespassing upon, entering, developing, selling, charging leasing or in any way interfering with plot number 1710 measuring 0. 7797 acres, title deed number Konza/South Konza South Block5(Konza)2160(O.3078Ha). an order directing the Respondent to forth with remove the fence and building materials failure to which the same shall be removed and evicted therefrom by the claimant.b.A declaration that plot number 1710 measuring 0. 7797 acres, title deed number Konza/South Konza South Block5(Konza)2160(O.3078Ha) is a public utility.c.An order directing the respondent to remove all the building materials, fence and any other illegally installed objects in plot number 1710 measuring 0. 7797 acres, title deed number Konza/South Konza South Block5(Konza)2160(O.3078Ha)d.General damages against the Respondent for trespass.e.The Officer Commanding Station (OCS) Machakos Police Station be ordered to supervise the enforcement of the orders issued herein.f.Costs of this suit.g.Interest on (c)and (e) above at court rates.h.Any other relief that this Honourable court may deem fit and just to grant.

2. The Respondent despite service did not enter appearance as such the Claimant filed a request for judgment dated December 2, 2021 filed on January 18, 2022 and the same was entered on January 19, 2022. Interlocutory Judgment having been entered matter proceeded for Formal Proof on November 17, 2022. The CW1 through its Chairman David Mutangili adopted his witness statement dated May 18, 2021 filed on May 19, 2021. He further produced his list of documents dated May 18, 2021 filed on May 19, 2021. He further clarified the water tank had its own title and Respondent encroached that piece of land.

3. Noting that the Respondent despite service did not enter appearance we are inclined to convincing by the Claimant.It is unfortunate the Respondent did not enter appearance or defend the claim.For whatever reason they did not enter appearance or file a Defence.We thus find the claim is straight forward and enter judgment in favour of Claimant against Respondent.Claim is found to be with merit and find for:a.A permanent injunction is hereby granted restraining the Respondent, his assigns and/or servants from trespassing upon, entering, developing, selling, charging leasing or in any way interfering with plot number 1710 measuring 0. 7797acres, title deed number Konza/South Konza South Block5(Konza)2160(O.3078Ha)an order directing the Respondent to forth with remove the fence and building materials failure to which the same shall be removed and evicted therefrom by the Claimant.b.A declaration that plot number 1710 measuring 0. 7797 acres, Title Deed number Konza/South Konza South Block5(Konza)2160(O.3078Ha) is a public utility is hereby granted.c.An order is hereby granted directing the Respondent to remove all the building materials, fence and any other illegally installed objects in plot number 1710 measuring 0. 7797 acres, Title Deed number Konza/South Konza South Block 5(Konza) 2160(O.3078Ha)d.General damages prayer against the Respondent for trespass fails.e.The Officer Commanding Station (OCS)Machakos Police Station is hereby ordered to supervise the enforcement of the orders issued herein.f.Costs and interest of this suit

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF APRIL, 2023. Hon. Beatrice Kimemia Chairperson Signed 27. 4.2023Hon. J. Mwatsama Deputy Chairperson Signed 27. 4.2023Hon. Beatrice Sawe Member Signed 27. 4.2023Hon. Fridah Lotuiya Member Signed 27. 4.2023Hon. Philip Gichuki Member Signed 27. 4.2023Hon. Michael Chesikaw Member Signed 27. 4.2023Hon. Paul Aoi Member Signed 27. 4.2023Tribunal Clerk Jemimah/JonahNo appearance by parties.Judgment is delivered in absence of parties.Hon. J. Mwatsama Deputy Chairperson Signed 27. 4.2023