Moses Rugut v Philip Kipngeno & another [2017] KEHC 4845 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

ELC CASE NO.46 OF 2013

MOSES RUGUT .................................................................PLAINTIFF

VERSUS

PHILIP KIPNGENO..................................................1ST DEFENDANT

DAVID MITEY CHERUIYOT.....................................2ND DEFENDANT

JUDGMENT

By a Plaint dated 22nd July, 2013 the Plaintiff herein filed suit against the defendant seeking the following reliefs:

a. A declaration that the Plaintiff is the lawful proprietor of Plot no 380 United Soy Londiani, previously plot no, 59 United Soy Londiani.

b. An order of permanent injunction restraining the defendants from entering, putting up structures, alienating or otherwise adversely interfering with the plaintiff’s enjoyment of his absolute and inalienable proprietary rights with respect to all that  parcel of land known as plot no. 380 United Soy Londiani situated in Kericho County.

c. An eviction order ejecting the defendants from the plaintiff’s PLOT NO. 380 UNITED SOY LONDIANI formerly  Plot No.59 United Soy Londiani.

d. A temporary order in terms of b) above to last pending the hearing of the case.

e. Costs and interest.

Simultaneously with the plaint the plaintiff filed a Notice of Motion seeking a temporary injunction to restrain the defendants from interfering with all that parcel of land known as PLOT NO. 380 UNITED SOY LONDIANI pending the hearing and determination of the main suit.

The order for a temporary injunction was granted on 6th November 2013.

The 1st defendant who appeared in person filed what he perceived to be a defence though it was rather unconventional. The long and short of it is that he stated that the plaintiff obtained the plot irregularly as it was allegedly sold to two people.

When the suit came up for hearing the defendants did not attend even though they had been served with a hearing notice. The suit therefore proceeded as an undefended one.

The plaintiff testified that he bought land parcel number 59 UNITED SOY LONDIANI from United Soy Farmers Ltd in 1996 for Kshs, 38,000.  He produced a copy of the sale agreement dated 14th February 1996.

He further testified that it wasn’t until 2007 that he realized that the defendants were trespassing on his plot. He then reported the matter to the chief  who issued a written warning to the 1st defendant but this did not deter him. The case was then referred to the D.C who called the relevant stakeholders and it was established that the plot belonged to the plaintiff. He produced minutes of the meeting held at the chief’s office as well as the warning letter issued by the chief. When all these interventions did not yield fruit, he decided to file suit.

The Plaintiff explained that owing to some internal governance issues with United Soy Farmers Ltd, they had not yet issued him with a title deed. He stated that none of the people who had bought plots from this company had been issued with a title deeds.

From the evidence adduced which stands uncontroverted, the plaintiff has demonstrated that he is the lawful proprietor of land parcel number 380 UNITED SOY LONDIANI, formerly known as PLOT NUMBER 59 UNITED SOY LONDIANI. He produced the sale agreement showing that he purchased the plot in 1996 for the sum of Kshs. 38,000. He also demonstrated that he has tried to stop the defendants from trespassing on his land, in vain.

Regarding the title, he explained that the same has not yet been processed by United Soy Farmers Company Ltd and in the absence of any evidence to the contrary, I have no reason to doubt him. I also take judicial notice that sometimes it takes a while to process title deeds after purchase of land.

The upshot of the foregoing is that the plaintiff has proved his case on a balance of probabilities. I therefore enter judgment in his favour as prayed in the plaint and order as follows:

a. That declaration is hereby issued that the Plaintiff is the lawful proprietor of PLOT NO 380 UNITED SOY LONDIANI, previously PLOT NO, 59 UNITED SOY LONDIANI.

b. An order of permanent injunction be and is hereby issued restraining the defendants from entering, putting up structures, alienating or otherwise adversely interfering with the plaintiff’s enjoyment of his absolute and inalienable proprietary rights with respect to all that parcel of land known as plot no. 380 United Soy Londiani situated in Kericho County.

c. An eviction order is hereby issued ejecting the defendants from the plaintiff’s PLOT NO. 380 UNITED SOY LONDIANI formerly Plot No.59 United Soy Londiani within the next 3 months.

The defendant shall pay the costs of this suit.

DATED, SIGNED AND DELIVERED THIS 29TH DAY OF JUNE 2017.

J. M ONYANGO

JUDGE

In the presence of:

1. Miss Kitur for Andama for the Plaintiff.

2. Defendants present in person.