Robert Gathua Thuku v Mohamed Sthambuli, Mwanatumu Ali Ndaro, Grace Nyokabi Githome & Kilifi Municipal Council [2014] KEELC 85 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC CIVIL CASE NO. 158 OF 2013

ROBERT GATHUA THUKU............................................................PLAINTIFF

=VERSUS=

MOHAMED STHAMBULI.....................................................1ST DEFENDANT

MWANATUMU ALI NDARO................................................2ND DEFENDANT

GRACE NYOKABI GITHOME..............................................3RD DEFENDANT

KILIFI MUNICIPAL COUNCIL..............................................4TH DEFENDANT

J U D G M E N T

Introduction:

1. The Plaintiff's suit is premised on the Plaint dated 16th September 2013. In the Plaint, the Plaintiff has averred that at all material times, he has been the registered owner of land known as MN/III/1351 while plot number MN/III/592 is a road reserve.

2. According to the Plaint, the Defendants have encroached on both plots. The Plaintiff is seeking for vacant possession and mesne profit.

3. The Defendants neither entered appearance nor filed a Defence.  The matter proceeded for formal proof on 7th July 2014.

The Plaintiff's case:

4. The Plaintiff, PW1, informed the court that he is the registered proprietor of plot number MN/III/1351 having bought it in May 2007. The Plaintiff produced the certified copy of the Certificate of Title for subdivision number 1351 and the postal search as PEXB 1 and 2 respectively.

5. It was the evidence of PW1 that he later on realised that he no longer had an access road to his plot.  He also realised that the Defendants’ two buildings were inside his land and a surveyor prepared a report to that effect.

6. According to the Plaintiff, the surveyor's report showed that the Defendants had encroached on his plot by 66. 5M2.

7. The surveyor, PW2, informed the court that the Defendants have encroached on the suit property and one of the Defendants has blocked the access to his plot.  PW2 produced his report as PEXB 3.

Submissions:

8. The Plaintiff's advocate filed his submissions.  The said submissions simply reiterated the evidence by PW1 and PW2.

Analysis and findings:

9. The Plaintiff produced in evidence the Certificate of Title and the official search for subdivision number 1351 Section III Mainland North.  The documents show the Plaintiff as the registered proprietor of Plot No.1351.

10. According to the report by the surveyor, PW 2, one of the Defendant's houses, which he has shown on his sketch plan, encroaches on MN/III/1351 by 66. 5M2 while the second house encroaches on the same plot by 23. 4M2.

11. It was the evidence of PW 2 that the second house also encroaches on plot number MN/III/592 which is a road reserve leaving a very narrow footpath.

12. The evidence of PW1 and PW2 is not controverted.

13. On the basis of that evidence, I am satisfied that the 1st , 2nd and 3rd Defendants have encroached on the Plaintiff's plot number 1351 and have also blocked the access road to the Plaintiff's plot.  The Plaintiff has proved his case on a balance of probabilities.

14. In the circumstances, I allow the Plaintiff's Plaint dated 16th September 2013 as follows:

(a) The 1st, 2nd and 3rd Defendants to give vacant possession of plot number MN/III/1351 and MN/III/592 as per the surveyor’s report dated 13th April 2010 and failure to do so the Defendants’ houses to be demolished at their own cost by the Plaintiff.

(b)   The 1st, 2nd and 3rd Defendants to pay to the Plaintiff the costs of the suit.

Dated and delivered in Malindi this 28th day of  November,2014.

O. A. Angote

Judge