Pascal Wafula Wambulwa v Jotham Monyo [2020] KEELC 382 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 104 OF 2014

PASCAL WAFULA WAMBULWA..........................PLAINTIFF

VERSUS

JOTHAM MONYO................................................DEFENDANT

JUDGMENT

1. The plaintiff vide a plaint dated 16/6/2014 and filed in court on 18/6/2014 instituted the present suit seeking for judgment against the defendant for a declaration that the plaintiff is the sole legal owner of the land comprised in TitleNo. TRANS NZOIA/KIMONDO KIMONDO BLOCK 6/NALULINGO/267and that the defendant is a trespasser in the said land and for an order that the defendant do move out the land comprised in Title No. TRANS NZOIA/KIMONDO KIMONDO BLOCK 6/NALULINGO/267 failing which he be forcefully evicted therefrom together with anybody claiming under him, costs, interest and any other relief that the court may deem fit to grant.

2. The plaintiff, Pascal Wafula Wambulwa, testified as PW1, testified on 31/1/2019 and called two witnesses, that is, Ben Wanyama Situma Assistant Surveyor (PW2,)who testified on4/2/2019 and Ronald Sawenjai Walubengo (PW3)who testified on4/2/2019and18/2/2019and adopted his written statement recorded on 1/3/2018 as his evidence-in-chief. They were all cross-examined by Mr. Teti for the defendant.

3. On 17/11/2020 this matter came up for hearing and neither the defendant nor his advocate appeared when the matter was called out, and the court, satisfied that a hearing notice had been served and an affidavit of service filed in court, deemed the defendant’s case closed and set the matter down for judgment on 9/12/2020.

4. I have considered the pleadings and the evidence of the plaintiff in this case. In the absence of the defendant’s evidence only the plaintiff’s evidence stands uncontroverted. Even the rigorous cross-examination of the witnesses by Mr. Teti, counsel for the defendant did not shake the evidence of the plaintiff and his witnesses. What came out is that the plaintiff was a member of the Trans Nzoia Investment Co Ltd, that he was given No. TRANS NZOIA/KIMONDO KIMONDO BLOCK 6/NALULINGO/267 while the defendant was given No. TRANS NZOIA/KIMONDO KIMONDO BLOCK 6/NALULINGO/262 and that the surveyor had verified that the defendant was in occupation of the plaintiff’s plot and he has failed to vacate that plot.

5. I therefore find that the plaintiff has established this claim against the defendant on a balance of probabilities and I hereby grant the plaintiff judgment against the defendant as prayed in prayers Nos. (a), (b)and(c) in the plaint dated 16/6/2014.

Dated, signed and delivered at Kitale via electronic mail on this 9th day of December, 2020.

MWANGI NJOROGE

JUDGE, ELC, KITALE.