Peter Kigia Joram v Bornes Cherono Barta [2013] KEHC 5508 (KLR)

REPUBLIC OF  KENYA

IN THE HIGH  COURT  OF  KENYA AT  NAKURU

CIVIL 257  OF  2012

PETER KIGIA  JORAM……………………………PLAINTIFF

VERSUS

BORNES   CHERONO BARTA…………....…….DEFENDANT

JUDGEMENT

The plaintiff Peter Kigia Joram filed a plaint against   the Defendant Bornes Cherono Barta seeking the following orders:

Vacant  possession  and  an  order of  eviction

Mesne profits at Kshs 300,000 annually with effect from 2009.

General  damages  for trespass.

A Permanent injunction restraining  the  Defendant either by  herself, agents  and/or  servants  from  dealing   with the  property  or  interfering   with  the  plaintiff’s quiet enjoyment of Nakuru/Sondu River/36.

Costs.

The Defendant was served but did not enter appearance.  Judgment was entered on 29th May 2012 and the matter listed for formal proof.

When the matter came for hearing before me on 2nd  May 2013, the  plaintiff  gave  oral  evidence  and called one.

The  plaintiff (PW1) testified that he  is the  registered  owner of Nakuru/Sondu River/36(here after referred to as the suit land) which  was  sold  to  his  late  father by Daniel M Wainaina and later transferred  to him after his father died: That he paid all the requisite fees and  acquired a title deed  in  his name: That he and his family   lived on the suit land  between  1985 to 1992 but  left  following the  1992 land clashes: That he  later found out  that one  Bornes  Cherono  Barta  had been  living  on the suit land since 2009 without his consent  and  despite her appearing before the  chief and D.O Kuresoi the  defendant  has  failed to  vacate  or  produce  proof  of  ownership of the suit  land.

He  produced as  exhibit in evidence  a title  deed in his  name, an official  search, consent  from the  land  control  Board and receipt of  payment of stamp duty.

Esther  Njeri  Kigia (PW2) testified that she was mother  to the  plaintiff  and  that  the  suit  land was transferred to  him by  Daniel M  Wainaina. She  stated that  they  had  lived  on the suit  land  from 1985 to1992 when they  were forced to  leave the suit  land  due to the 1992  Land  clashes. During their stay on the suit land they carried out various Economic Activities which included planting  maize, pyrethrum, cabbage and also kept  Dairy  cattle earning them an annual income of about Kshs 350,000.

I have taken into consideration the evidence  adduced by the two witnesses both oral and  documentary  and the counsel’s submissions and l find that the plaintiff's testimony has been corroborated by PW2.

Sections 27 and 28 of the repealed Registered land Act cap 300 (which governed the suit land when registration was effected) protects  the  rights  of a registered  owner  of  Land.

27. Subject to this Act -

(a)   the registration of a person as the proprietor of  land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto………

(b)……………………………………………..

28. The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto free from all other interests………..''

I am  satisfied  from  the  evidence  adduced that  the certificate of title held by the plaintiff is conclusive  evidence  of  proprietorship  and there being  no  evidence  to the contrary I  enter judgment  as prayed in the  plaint   and  order as follows:-

That  the  Defendant  gives vacant  possession  of the suit  land  within  30 days from the  date hereof, failure of which the  Defendant be evicted  from the suit  land.

A Permanent injunction is granted restraining  the Defendant either by herself, agents  and/or  servants from dealing with the property or  interfering  with  the  plaintiff’s  quiet  enjoyment  of Nakuru/Sondu River/36.

No order is granted on costs  as the  defendant did  not  enter  appearance.

Dated signed and  delivered  in open court  at  Nakuru this 5th day  of  July 2013.

L  N  WAITHAKA

JUDGE

Present

Mr  Orege  for the  plaintiff

N/A  for  defendant

Stephen  Mwangi  :  Court  Clerk

L N WAITHAKA

JUDGE