SIMIYU NAMAWANGA v SHEM KORORIA & another [2010] KEHC 152 (KLR)

REPUBLICOF  KENYA

IN THE HIGH COURT OF KENYA AT KITALE

CIVIL SUIT NO. 65 OF 2009

SIMIYU NAMAWANGA ………………………………….PLAINTIFF

VERSUS

SHEM KORORIA

PETER KIMINYI........................…………………..DEFENDANTS

JUDGMENT

1.       The plaintiff filed this suit on 28th April 2009 seeking for an order of eviction against the Defendants, agents, servants or family from Mt. Elgon/Kaptama/265 as well as costs of the suit. The summons to enter  appearance were served upon the defendants as per the affidavit of service filed on 21st January, 2010.  The defendants did not enter appearance and no defence was filed and an interlocutory judgment was entered on 10th February, 2010.

The matter was filed for formal proof. the plaintiff Simiyu Namawanga gave evidence in support of the claim.  He testified that he is the registered proprietor of title No. Elgon/Kaptama/265 approximately 5. 6 Hectares. He was  issued with a title deed on 9th February, 1996 although he has lived on this parcel  of land with his family from 1964.  The plaintiff testified that due to the tribal clashes that rocked the area in 1992, he was forced to flee from his land for safety.  That is the two defendants, Shem Kororia and Peter Kiminyi trespassed upon his land without any color of right.

Despite demand that the defendants should vacate the plaintiff’s parcel of land, they  have failed and neglected to move out of the plaintiff’s parcel of land.  The plaintiff testified that he is aged 86 years.  He has children and grand children who depend on him; he urged the court to issue order of eviction against the two defendants and to award him costs.

The defendants did not enter appearance; the plaintiff was able to prove his case to the required standard that he is the registered proprietor of the land known as Elgon/Kaptama/265.  His evidence was not controverted, he produced the original certificate of title for the suit land.

Accordingly the plaintiff is entitled to the prayers sought as follows:-

There be an eviction order against the plaintiff/agents/servants/family  from Elgon/Kaptama/265 if they fail to move within 90 days of being served the order.

The plaintiff shall have the costs of this suit.

Judgment read and signed on 12th November, 2010.

MARTHA KOOME

JUDGE.