Moses Wanyama Masinde v Stephen Bwongo Wafula & Gabriel Nyongesa Wafula [2013] KEHC 1975 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL  CASE NO. 131 OF 2012

MOSES WANYAMA MASINDE …...................……............…….. PLAINTIFF

VERSUS

STEPHEN BWONGO WAFULA .................……................1ST DEFENDANT

GABRIEL NYONGESA WAFULA …................................. 2ND DEFENDANT

JUDGMENT

The plaintiff filed the suit against  the two defendants seeking;

(a). Eviction from land parcel  No. BOKOLI/MUKUYUNI/1653.

(b). Costs

(c). Interest thereon on (a) & (b) at court rates.

(d). Any other relief the court may deem  fit to grant.

The plaintiff filed affidavit of service on 29th October 2012. The process server deponed that the defendants were duly served with summons to enter appearance, plaint, statements and documents on 26th September 2012.  The plaintiff subsequently requested for Interlocutory judgment on the same date (29. 10. 2012) although the same was not endorsed as an order of the court.

The plaintiff thereafter set the suit down for hearing. On 20th  March 2013, a day before  the first hearing, Mr. Ateya advocate filed a  memorandum of appearance for both defendants. On 21st March 2013, Mr. Juma advocate holding his brief sought an adjournment to allow the defendants  to file their papers. The court granted  the adjournment and hearing set for 9th May 2013. The defendants were to file their papers before then.

On 9th May 2013, neither the defendants nor their advocates appeared.  The suit  therefore  proceeded   ex parte.  The plaintiff (hereinafter  referred to as PW1) testified.  He told court that he purchased  3 acres of land from the father of the defendants which land was to be  curved out of L.R. Bokoli/Mukuyuni/1380. In the year 2010, the defendants' father subdivided the  land and transferred  to him his new portion now comprised in L.R. No. Bokoli/Mukuyuni/1633. He produced  a sale agreement, official search and  copy of title deed to prove this land belongs to him.

PW1 further said that the defendants'  forcibly entered the land in January 2011 and in paragraph 5 of the plaint he avers, “the defendants have unlawfully encroached on the plaintiff's land parcel Bokoli/Mukuyuni/1633 and have erected houses besides ploughing and planting in it  food crops to the exclusion of the plaintiff.”This evidence has not been challenged given the defendants did not participate in these proceedings. In the absence of  contrary evidence, I have  no reason to deny the plaintiff an opportunity to enjoy the use of his land L.R. No. Bokoli/Mukuyuni/1633 as protected by the law.

In the end, the plaintiff's suit therefore succeeds.  The defendants  are directed to vacate the suit property within 60 days from the date of service of this judgment upon  them. In default, the plaintiff is at liberty to  use lawful means to have the defendants evicted from the suit land.  The plaintiff is not awarded costs  as the suit proceeded unopposed.

JUDGMENT DATED and DELIVEREDthis 8thday of October 2013.

A. OMOLLO

JUDGE.