Richard Kikwai Barno v Angeline Chepwogen [2018] KEELC 79 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

ELC NO.459 OF  2017

RICHARD  KIKWAI BARNO..............PLAINTIFF

VERUS

ANGELINE CHEPWOGEN..............DEFENDANT

JUDGMENT

(Suit by plaintiff claiming rights over certain land; plaintiff holding title to the suit land; defendant entering the suit land and utilizing it; defendant not filing anything to oppose the suit; clear that it is the plaintiff who has title to the suit land; defendant not having any right to be upon the suit land; judgment entered for the plaintiff)

1. This suit was commenced by way of a plaint which was filed on 14 August 2007. In the plaint, the plaintiff has pleaded that he is the registered owner of the land parcel Nakuru/Tinet Sotik Settlement Scheme/461, having been issued with title on 12 October 2005. He pleaded that sometimes in the year 2006, the defendant unlawfully entered the said land and started cultivating it and put up a structure. In the suit, the plaintiff has sought for orders of eviction and permanent injunction against the defendant; general damages for trespass and mesne profits; and costs of the suit.

2. Despite being served with summons, the defendant did not enter appearance to this suit. Neither did she appear at the hearing of the matter.

3. In his evidence, the plaintiff testified inter alia that the suit land was allocated to him by the Government in the year 2005. He was required to pay some money for the issuance of title which he duly paid and he was thereafter issued with a title deed. He produced the title deed and the official search as exhibits. He testified that he had left the land to his brother to take care of, but he died in the year 2006, and when he went to take possession in the year 2007, he found the defendant on the land. She had also put up a structure and despite being asked to move out, she refused to do so.

4. The only material I have in this case is that supplied by the plaintiff. I have seen that the plaintiff indeed has title to the suit land. The defendant has not filed any defence and has not given any reasons as to why she is entitled to continue being in the suit land. I am therefore persuaded that it is the plaintiff who is the rightful proprietor of the suit land. He has title and his rights are protected by law.

5. The suit was commenced in the year 2007, at which time the applicable law was the Registered Land Act, Cap 300, Laws of Kenya (repealed in the year 2012). Section 27 and 28 of the said statute apply, and they are drawn as follows:-

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) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied and expressed agreements, liabilities and incidents of the lease.

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 and claims whatsoever, but subject -

(a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and

(b) unless the contrary is expressed in the register, to such liabilities, rights and interests as affect the same and are declared by section 30 not to require noting on the register:

Provided that nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee.

6. It will be seen from the above that a holder of title is the person vested with exclusive proprietary rights over the said land. That includes the right of ingress and egress, the right to use, and the right to possession. These rights are thus vested in the plaintiff. The defendant, as I have mentioned, has not come to court to demonstrate that she has any rights that override the title issued to the plaintiff. I have no hesitation therefore to hold that as between the plaintiff and defendant, it is the plaintiff who is entitled to the title and all rights over the land parcel Nakuru/Tinet Sotik Settlement Scheme/461. He is thus entitled to the orders of permanent injunction and to orders of eviction of the defendant. I will however give the defendant 60 days to vacate the suit land on being served with this judgment and/or decree.

7. There is a claim for mesne profits and general damages. However no evidence was led that would enable me assess any monies that the plaintiff may have lost by the occupation of the suit land by the defendant. I however award the plaintiff the sum of Kshs. 100,000/= as general damages in recognition of the fact that his rights over the suit land were violated by the defendant. The plaintiff shall also have the costs of this suit.

8. I now make the following final orders :-

(i) That as between the plaintiff and the defendant, it is hereby declared that it is the plaintiff who is the rightful proprietor of the land parcel Nakuru/Tinet Sotik Settlement Scheme/461.

(ii) That the defendant is hereby ordered to vacate the said land parcel Nakuru/Tinet Sotik Settlement Scheme/461, within 60 days of service of this judgment and/or decree and in default an order for her eviction be issued.

(iii) That on expiry of the 60 day window given above, the defendant and/or her servants/agents and/or assigns, is hereby permanently restrained from entering, remaining, being in possession, or utilizing the land parcel Nakuru/Tinet Sotik Settlement Scheme/461, or interfering in any way with the plaintiff's use and possession of it.

(iv) That the plaintiff is awarded the sum of Kshs. 100,000/= as general damages for trespass.

(v) That the plaintiff is awarded the costs of this suit.

9. Judgment accordingly.

Dated, signed and delivered in open court at Nakuru this 13th   day of June 2018.

JUSTICE MUNYAO SILA

ENVIRONMENT & LAND COURT AT NAKURU

In presence of: -

Ms.  Mureithi holding brief for Mr.  Ikua for the plaintiff.

No appearance entered for the defendant.

Court Assistant: Nelima Janepher.

JUSTICE MUNYAO SILA

ENVIRONMENT & LAND COURT AT NAKURU