Naomi Mugure Wachira v Samuel Mayaka [2017] KEELC 3841 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

IN THE ENVIRONMENT AND LAND COURT OF KENYA AT NAIROBI

ELC NO. 885 OF 2012

NAOMI MUGURE WACHIRA …........ PLAINTIFF

VERSUS

SAMUEL MAYAKA ….................... DEFENDANT

JUDGMENT

Plaintiff filed the plaint on 23/11/12 averring that she is the registered owner of plot No. F 209 Kayole River Side Resettlement Scheme. She avers that Defendant unlawfully entered the said plot in January 2011, and has continued to trespass upon the plot. She prays for:

a. A permanent injunction restraining the Defendant his agents and/or servants from trespassing on plot No. F 209 Kayole Riverside Resettlement Scheme, carrying on any developments thereon and/or in any other manner whatsoever interfering with the plaintiff’s quiet and peaceful possession of the said plot.

b.  General   for trespass..

c. Costs of this suit

A statement of defence was filed along with a Counterclaim on 18/10/14 whereby Defendant claims to be the rightful owner of the plot. His prayer are as follows:-

a. A permanent injunction be issued against the plaintiff, his servants, employees and or any other person(s) claiming through the plaintiff from damaging, trespassing, entering, claiming, alienating and or interfering in any manner whatsoever with the defendants quiet and peaceful possession of Plot No.R96 Kayole Riverside North.

b. A declaration that the Defendant is the rightful owner of Plot R96 Kayole Riverside North.

c. Costs of the suit.

When the matter came up for hearing on 22/5/12, Counsel for the plaintiff, Mwangi Irungu withdrew the case of plaintiff as against the Defendant. He also opted not to defend the claim for the defendant.  The counter claim hence proceeded as ex-parte proceedings. Samuel Mayaka, the Defendant herein testified and relied on his statement filed on 15/4/2015, as well as the list of documents dated filed same date. He produced the said documents as Exhibits 1-8.

I find that Defendant has given a plausible account of how he came to be the owner of the suit land. His documents especially the receipts in marked as Exhibit 2 reveals that he is recognized by the City Council of Nairobi (now County Government of Nairobi) as owner of the plot No. R96. He also produced a map of the area where the director of Housing and Development (Exhibit 6) clarifies that the map has no allotee by the number F 209 but that Defendant is the owner of plot R 96.

I therefore find that Defendant has proved his counter claim. I enter judgment for Defendant against the plaintiff in terms of the following:

1. Plaintiff’s suit as against the Defendant is marked as withdrawn but with cost to Defendant.

2. A permanent injunction is hereby  issued against the plaintiff, his servants, employees and or any other person(s) claiming through the plaintiff from damaging, trespassing, entering, claiming, alienating and or interfering in any manner whatsoever with the defendants quiet and peaceful possession of Plot No.R96 Kayole Riverside North.

3. A declaration is hereby issued to the effect that defendant is the rightful owner of Plot no. R96 Kayole Riverside North.

DATED SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF NOVEMBER 2017

HON. L.N. MBUGUA

ELC JUDGE

IN THE PRESENCE OF:-

Wanjala H/B for Irungu Mwangi for Plaintiff

Mumia H/B for Osoro for Defendant