Michael Muema Kanyumu v Nthenya Mutua,Kioko Mutua,Muoki Mutua,Itambo Mutua & King’oo Mutua [2017] KEELC 15 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MACHAKOS

ELC NO. 108 OF 2007

MICHAEL MUEMA KANYUMU ............................... PLAINTIFF/APPLICANT

VERSUS

1.  NTHENYA MUTUA  ...................................1ST DEFENDANT/RESPONDENT

2.  KIOKO MUTUA.........................................2ND  DEFENDANT/RESPONDENT

3.  MUOKI MUTUA ........................................3RD DEFENDANT/RESPONDENT

4.  ITAMBO MUTUA.......................................4TH DEFENDANT/RESPONDENT

5.  KING’OO  MUTUA...................................5TH  DEFENDANT/RESPONDENT

JUDGMENT

1.  Michael Muema Kinyumu who is the plaintiff herein is a resident of Nairobi and  has  a home in Mbooni.  He also owns land parcel number Mbooni /iiani/251 which he purchased from one Rebecca in the year 2003.  He has sued the defendants who are still in occupation of the said Mbooni/iiani/251.

2.  By his plaint dated the 26th November, 2007 and filed in court on even date, the plaintiff prays for judgment  against  the defendants  for:-

a)  A declaration that  the plaintiff is the lawful and bonafide owner and entitled to occupation and possession of Plot No.MBOONI/IIANI/251

b) A perpetual injunction retraining  the Defendant either  by themselves, their agents, employees, servants and/or otherwise whosever from entering ,occupying, trespassing, constructing, erecting, building structure and /or in any other way interfering with the Plaintiff’s Plot No. MBOONI/IIANI/251.

c)  Costs and interest of this suit.

d)  Any other  and/or other relief that this Honourable Court deems fit and expedient to grant in the aid of justice.

3.  The claim is denied by the Defendants in their joint statement of defence dated 04/12/2007 and filed in court on even date.

4.  The plaintiff’s  evidence in chief  was that he purchased land parcel number Mbooni/iiani/251 from  one Rebeccan the year 2003.  He went on to say that he paid Rebecca the purchase price which the two had agreed upon in the presence of the Defendants and that he was thereafter issued with a title deed for the land in question in  the year 2007 (see Pex. no 1)He produced a copy of search and a receipt issued to him to show the land belongs to him as Pex no. 2(a) and (b) respectively.  The plaintiff went on to say that the Defendants have barred him from developing the land in question since the year 2003.  He added that the Defendants have cultivated  on the land and at times, they erect structures on it.

5.  His evidence in cross-examination by the second Defendant was that the Defendants only served him with an objection to the sale of land  after he had purchased it.  He said that the only building that he saw in the land as he purchased it belonged to the seller, an issue he reiterated in his evidence in re-examination.

6.  Only the second  defendant  testified  in court.  The other Defendants did not show up in court for hearing.  His evidence was that land parcel number Mbooni/iiani/251 is registered in the name of Rebecca Mutio Kioko. He went on to say that it is their only ancestral land that remains after the rest of the land was sold to other people.  He said that he and his co-defendants have lived on the said land for close to 40 years and have made enormous development on it. He said that in the year 2005, he noticed land sale agreement between his grandmother, his parents and the plaintiff.  He termed the sale agreement as a conspiracy and that he and his co-defendants were aggrieved by the intended sale as a result of which they lodged complaint to their clan head and at the Land Control Board. He pointed out that in their complaint, they sought  to be given the first priority to purchase the land and asked the court to disallow the sale as it required to have their consent.

7.  His evidence in cross-examination  by Mr. Mutune for the plaintiff  was that  Rebecca Mutio Kioko is the registered owner  of the suit land but admitted that he had not produced  any documents to prove it.  He said that the copy of title deed (Pex no. 1) and the copy of  official search (Pex no. 2(a) ) show the plaintiff as the registered owner of the land in question.  He agreed that Rebecca Mutio Kioko’s name does not appear in the two documents.  He agreed that Rebecca sold the land to the plaintiff and could not tell if she was forced to sell it or not.  He admitted that his parents were present when she sold the land in question.  He agreed that he had not produced any documents to show that he  and his co-defendants had objected to the sale.  He said that the plaintiff has not  been to the land since he purchased .

8.  None of the parties had filed their submissions by the time of writing this judgment.  From the evidence on record, I have no doubt that the plaintiff is the registered owner of land parcel number Mbooni/iiani/251.  The Defendant himself  has conceded as much  in his evidence in  cross-examination.  It also clear that the plaintiff has not been  able to make use of his property because the Defendants  are in actual possession of it even though the second defendant in his evidence in cross-examination told the court that it is only the 5thDefendant who is residing on the said parcel of land.  There is no evidence to show that the Defendants ever objected to the sale agreement between the plaintiff and Rebecca Mutio Kioko the former   being  the purchaser and the latter  being  the seller of the suit land.  Even though the 2nd Defendant in his evidence in chief told the court that he and his co-defendants have lived on the said land for more than 40 years he did admit in his evidence in cross-examination that his parents were present when one Rebecca Mutio   Kioko sold the land to the plaintiff.  The Defendant  in his own evidence told the court portions of the said  parcel of land were sold to other buyers and there is no evidence to show that the Defendants ever objected to such sale.

9.  Having evaluated the evidence on record and having read the pleadings herein, I am satisfied that the plaintiff has satisfied this court that he has cause of action against the Defendants.  In the circumstances, I hereby proceed to enter judgement for the plaintiffs against the Defendants jointly and severally in terms of prayers (a), (b) and (c) of the plaint.  It is so ordered.

Judgment delivered and signed on 25th July, 2017 at Makueni Environment and Land Court .

MBOGO C.G

JUDGE

25/7/2017

Before  Mbogo  C.G judge

Mr. Kwemboi - Court Assistant

Mr. Hassan hold brief for Mr.Musyoka Kimeu for plaintiff absent

1st Defendant

2nd Defendant

3rd Defendant      Absent

4th Defendant

5th Defendant

MBOGO C.G

JUDGE