Peter Mutiso Wambua v Ndungo Muthembwa Musomba [2018] KEELC 3039 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT  AND LAND COURT  AT MAKUENI

ELC  NO. 100 OF 2017

PETER  MUTISO  WAMBUA...............................PLAINTIFF

VERSUS

NDUNGO   MUTHEMBWA   MUSOMBA.......DEFENDANT

JUDGMENT

1) By  his  plaint   dated  28th March, 2014 and filed  in court on   23rd  April,  2014 the Plaintiff   prays for  judgment  against the   Defendant  for :-

a) An order   compelling the Defendant  to  unblock  the surveyed  access  road   to the Plaintiff  Land  Parcel No. Kisau/Nduluku/771.

b) A permanent   order of injunction to restraining(sic)  the Defendant  by himself, his agents and/or  servants from interfering with the Plaintiff’s peaceful occupation of the said  Land Parcel  No. Kisau/Nduluku 771 and access thereto.

c) Costs and interests of the suit.

2) On the  16th May, 2014 the Defendant   was served   with summons  to enter  appearance  and to file his defence as can be seen from the affidavit of service sworn at Machakos on  the 12th June, 2014 by Jacob M. Muthenya  who is a process sever.   On the 21st September, 2017 the court directed that this suit do proceed  as undefended.

3) Hearing  of the Plaintiff’s case commenced on the 22nd November, 2017.  His evidence was that he is a resident of Kisau Nduluku and that he owns land parcel number  Kisau/Nduluko/771 having  bought the same from Muthembwa Musomba (PW1).  The Plaintiff  went on to say that Musomba  (PW1) allowed him to have a road of access which  was later blocked by one  of Musomba’s (PW1) sons.  He revealed that the road of access was parceled by a Surveyor and had mutation form to prove it.

4) The Plaintiff produced  title deed for  land parcel number  Kisau/Nduluku/771, mutation form and demand letter  issued to the Plaintiff  as P Ex. Nos  1,2 and  4 respectively.

5) The Plaintiff’s evidence is supported by the evidence of Musomba  (PW1) and that   of Mulinge Mark(PW2).

6) Musomba (PW1)  adopted his statement  which he recorded on the 28th March, 2014 as his evidence.  In his  evidence  Musomba   (PW1)confirmed having sold land parcel number  Kisau/Nduluku/771  to the Plaintiff and proceeded to transfer the same to  him.  He pointed out that a road of access was lawfully created  with his consent by Surveyor as per the agreement that he had with the Plaintiff.  He went on to say that on  or  about  April, 2013 the Defendant who is his son blocked  the road of access that lead to the Plaintiff’s parcel of land without lawful  justification.  He further said that despite his and the Plaintiff’s warning to the Defendant  to re-open it,the latter did not heed.

7) Mulinge (PW2) in his evidence told the court that  he is a  holder of diploma in cartography from  the Kenya Institute of Surveyors and Mapping. He said that the survey map for Kisau/Nduluku registration section sheet or diagram number  6 shamba number Kisau/Nduluku/771 shows   that   it has  an access road  whose  width is 10 metres.

8) The witness  added that  the access road is  approximately half a Kilometre from a 20  metre road.  He produced  the survey map  which he printed on  24trh January, 2018 as PEx no.  3.

9) The  Plaintiff’s  counsel in his written submissions urged the court to find that the Plaintiff has proved his  case on a balance  of probabilities   and  hence  proceed to  grant to the prayers.

10)   From  the evidence  on record,  there is   no doubt   that land parcel number Kisau/Nduluku/771 belongs  to the Plaintiff herein.  The parcel of land is served by an access road which  is reflected  in the  survey map  sheet number 6.  The  said  access  road  was lawfully established pursuant to the  agreement that the Plaintiff had with Musomba  (PW1). That being the case, the  Defendant  had no business to block the said road of access.  In a nutshell the Defendants actions were unlawful. I agree with the Plaintiff’s  counsel that the Plaintiff  has on a  balance of probabilities  shown that he has a cause  of action against the Defendant.

11)   In  the circumstances, I hereby proceed to enter judgement for the Plaintiff  and against the Defendant  in terms of prayers(a),(b) and (c)  of the plaint.

Signed, dated and  delivered at Makueni  this  31st   day  of May, 2018.

MBOGO C.G

JUDGE

IN THE PRESENCE OF;

In the presence of Ms Walta for the Plaintiff

No appearance for the Defendant

MBOGO C.G, JUDGE

31/5/2018