Pentagon Communications Ltd v Malambo Jeferson & 46 others [2014] KEHC 3037 (KLR)

ORIGINAL

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

ENVIRONMENT AND LAND CASE NO. 268 OF 2012

PENTAGON COMMUNICATIONS LTD. ............................................PLAINTIFF

- V E R S U S -

MALAMBO JEFERSON & 46 OTHERS .......................................DEFENDANTS

JUDGEMENT

[1]  Pentagon Communications Ltd, the plaintiff herein filed suit against the 47 defendants herein.  He stated that he is the registered proprietor of all that plot no. 3638/VI/Mainland North comprising of 1. 572 hectares.He stated that the plaintiffs without any lawful authority encroached upon the suit property which action it is alleged is against the rights of the plaintiff proprietor.  The plaintiff stated that it severally attempted to evict the defendants but the defendants have always repulsed the plaintiffs with force. He further stated that he has severally employed the service of the local provincial administration led by the District Officer, but even that has not yielded positive results in the plaintiffs favour.  He states that he attempted and offered compensation on humanitarian grounds for all the structures the defendants have erected on the premises but the defendants declined to accept such compensation.

[2]  It is alleged that between 1st August 2012 and 30th August 2012 the defendants agents called the plaintiff for several meetings in the offices of the local chief but the defendants refused to attend with the sole intention of staying in the  suit property.  The plaintiff says that this is a commercial  property while the defendants use it as a residential property and plaintiffs state that they stand to lose alot.  They pray for an order of evicting of the defendants from Plot No. 3698/V1/Mainland North and a permanent injunction to restrain the defendants by themselves, their servants, agents and/or otherwise from trespassing, plot no. 3698/VI/Mainland North and costs of the suit.

[3]  On 12th April 2013, the plaintiffs filed a notice  of motion to be allowed to serve the defendants by substituted service by advertising in the Standard Newspapers and or Taifa Leo. The application was grounded on defendants hostility to the agents of the plaintiffs.  Joseph Manzi Munyithia advocate swore an affidavit deponing to these facts on 12th March, 2013 and annexed the affidavit of Titus Munyao Nyenge who deponed on the difficulties he encountered in trying to serve the defendants. I granted that application on 10th May, 2013. The defendants were served by advertisement on the Standard Newspapers on 6th June, 2013.  On 24th February, 2014 judgment was entered against the defendants by the Deputy Registrar. The matter was fixed for formal proof on 16th June, 2014. Mrs. Umara advocate for the defendant called her witness. Mr. Alamin Hassan Othman swore and took the stand. He stated that he was a director of the plaintiff company. He averred that he had made a written statement and signed it on 14th November 2012. The statement was annexed to the plaint. He relied on the  same.  In a nutshell he prayed for an eviction order against the defendants requiring the defendants to move and vacate from Plot No. 3686/VI/Mainland North and a permanent injunction restraining the defendants from ever trespassing on the suit property. The defendants who are served never chose to defend this suit. The evidence of the plaintiffs is uncontroverted. I am on a balance of probability convinced that the plaintiff has proved his case. I allow the same as prayed in the plaint.

Dated and delivered in open court at Mombasa this 4th day of  September,  2014.

S. MUKUNYA

JUDGE

4. 9.2014

In the presence of:

Umara Advocate for the plaintiff