Simiyu Musanga Ndombi v Marcella Nabukuto Patroba [2014] KEHC 3084 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

LAND AND ENVIRONMENT  CASE NO. 332 OF 2013

SIMIYU MUSANGA NDOMBI …................................ PLAINTIFF

VERSUS

MARCELLA NABUKUTO PATROBA.................Defendant

JUDGMENT

1. The plaintiff filed a plaint on 2nd December 2013 seeking the court to evict the defendant from his land parcel no. Kimilili/Kimilili/2533      and grant a permanent injunction to prevent the defendant from  interfering with the said parcel.  The plaintiff  filed along  with the   plaint some exhibits  in support of his case as required under Order 3    rule 2.

2.  Te defendant failed to enter appearance even after being  served with summons and notice of hearing.  This court then proceeded  by way       of formal proof after establishing  from the record  that the  defendant was duly served.

3.  The Plaintiff has urged this court  to  evict  the defendant from the  said parcel claiming that he is the real proprietor  of the land.  The plaintiff told court that  he is the sole proprietor of all that parcel known as Kimilili/Kimilili/2533  having bought it from one John Wafula Patroba who happens to be the defendant's brother.   That after the death of the seller the  defendant claimed that the land belonged to him.  That he put up structures and started selling firewood.That the defendant reported the matter to the D.O. who  summoned  the two and demanded for the production of documents.  That he showed his but the defendant did not have any.  It was then  the the  D.O asked the plaintiff to come  to court and seek for the above orders.

4.  I have carefully  examined  the plaintiff's documents and it clearly   indicates that he is the sole proprietor.  There are no  encumbrances registered upon the said  title deed attached.  The defendant was   duly served  and he did not at any instance come to court to defend himself.  Court is left to  assume and  rightly so from the examination of the documents that the plaintiff is the real owner of the said parcel.

5. Section 24 of the Land Registration Act confers  absolute ownership of title on the person registered as the proprietor.   Section  26 goes    ahead to state that  a certificate of title is conclusive  evidence of   proprietorship and can only be challenged on grounds of fraud or misrepresentation.  From the documents produced by the plaintiff it  shows that he is the owner of land parcel number             Kimilili/Kimilili/2533 and as such he is the legal proprietor of that   parcel. No evidence has been tendered to the contrary.

6.   In the premises I find the plaintiff has proved his case on a balance of probabilities   and order the defendant to stop forthwith from dealing in whichever manner with land  parcel  no. Kimilili/Kimilili/2533.  His presence in that parcel is hereby rendered  unlawful and he should vacate the land within  30 days from the date of  this judgment. In default, orders of  eviction  be and are hereby issued to the plaintiff.

7.  Since the suit is not defended no  costs are awarded.

Dated, signed and delivered in Bungoma this 17th day of July 2014.

A. OMOLLO

JUDGE