DISHON TAMPATI KISAKA VS PAUL LEKAKENY KIPTENG AND ELIZABETH KIPTENG AND 1 Others

JUDGEMENT

1. The Plaintiff approached the Honourable Court by way of a Plaint dated 07.12.2022 seeking for the following Orders against the Defendants herein;-
2. A permanent injunction restraining the Defendants, whether by themselves or their agents or otherwise howsoever, from trespassing and/or remaining on or continuing in occupation of LR.NO.TRANSMARA/MOITA/497.
3. Eviction of the Defendants, their agents and/or servants from the Plaintiff’s property LR.NO.TRANSMARA/MOITA/497.
4. General damages for trespass and mesne profit.
5. The officer commanding Kilgoris Police Station to ensure enforcement and compliance of the orders.
6. Costs of this suit and interest thereon at Court’s rates.
7. The facts pleaded in the Plaint before the Honourable Court are as follows;-
8. The Plaintiff is the registered and legal owner of the property known as LR.NO.TRANSMARA/MOITA/497.
9. The Plaintiff upon purchase of the property known as LR.NO.TRANSMARA/MOITA/497 proceeded to take possession of the same.
10. However, the Defendants herein without any justification and/or ownership rights entered into the property known as LR.NO.TRANSMARA/MOITA/497 and started occupying the same to the detriment of the Plaintiff.
11. The Plaintiff in Paragraph 6 pleaded various particulars of trespass and damages to the property known as LR.NO.TRANSMARA/MOITA/497 by the Defendants.
12. The Plaintiff further pleaded that despite a demand to vacate served, the Defendants have refused, failed and/or neglected to hand over possession of the property known as LR.NO.TRANSMARA/MOITA/497 to the Plaintiff.
13. The Plaint was thereafter served on the Defendants and an Affidavit of Service sworn on the 19.01.2023 by one MARTHA NJERI MWANGI filed in the same date.
14. Unfortunately, none of the Defendants either entered Appearance and/or filed any Statement of Defence within the prescribed time.
15. The Plaintiff proceeded to fix the matter for pre-trial and upon being certified ready for hearing, the same was fixed for hearing.

PLAINTIFF’S CASE

1. The Plaintiff’s case commenced on the 12.03.2024 with the evidence of the Plaintiff as PW 1.
2. The Plaintiff introduced himself as a resident of OLONTARE location and a farmer by occupation.
3. The Plaintiff informed the Honourable Court that on or about 14.10.2009, he purchased the property known as LR.NO.TRANSMARA/MOITA/497 from one JOHN IMPUSHE who is now deceased.
4. The Plaintiff produced an Agreement For Sale dated 14.10.2009 as PLAINTIFF’S EXHIBIT 1.
5. Upon purchase of the said property known as LR.NO.TRANSMARA/MOITA/497, the same was duly transferred into the Plaintiff’s name.
6. The Plaintiff produced the Certificate of Title for the property known as LR.NO.TRANSMARA/MOITA/497 issued on the 11.11.2009 as PLAINTIFF’S EXHIBIT 2.
7. The Plaintiff stated that upon securing the title of the property known as LR.NO.TRANSMARA/MOITA/497 in his name, he proceeded to take possession and occupation of the same.
8. However, the Defendants with no justification and/or authority entered into the property known as LR.NO.TRANSMARA/MOITA/497 and started occupying the same to the detriment of the Plaintiff.
9. The Plaintiff testified that he tried to amicably request the Defendants to vacate the property known as LR.NO.TRANSMARA/MOITA/497 but his request was declined by the Defendants.
10. As a result of the Defendants refusal to vacate the property known as LR.NO.TRANSMARA/MOITA/497, the Plaintiff proceeded to issue a formal demand letter for vacant possession from the Defendants which unfortunately was also neglected.
11. The Plaintiff produced the Demand Letter dated 27.08.2020 to the Defendants as PLAINTIFF’S EXHIBIT 3.
12. The Plaintiff’s prayer therefore was for the Honourable Court to declare that the property known as LR.NO.TRANSMARA/MOITA/497 belongs the Plaintiff and thereafter issue an eviction order against the said Defendants.
13. Further to that, the Plaintiff sought for a permanent injunction against the Defendants from entering, using, farming and or in any other way interfering with the quite occupation and possession of the Plaintiff’s property known as LR.NO.TRANSMARA/MOITA/497.
14. Lastly, the Plaintiff sought for general damages, mesne profit and costs of the suit.
15. At the end of this testimony, the Plaintiff was discharged from the witness box and the Plaintiff’s case was closed.
16. The Plaintiff thereafter filed his written submissions on the 23.04.2024 in support of his case.
17. The Honourable Court has indeed perused the pleadings, considered the testimony of the Plaintiff as well as the documents produced therein as well as the submissions and identify the following issues for determination; -

ISSUE NO. 1- IS THE PLAINTIFF ENTITLED TO A DECLARATION THAT THE PROPERTY KNOWN AS LR.NO.TRANSMARA/MOITA/497 BELONGS TO HIM?

ISSUE NO.2- IS THE PLAINTIFF ENTITLED TO QUITE OCCUPATION AND/OR USE OF THE PROPERTY KNOWN AS LR.NO.TRANSMARA/MOITA/497?

ISSUE NO.3- IS THE PLAINTIFF ENTITLED TO THE PRAYERS SOUGHT IN THE PLAINT?

ISSUE NO.4- WHO BEARS THE COSTS OF THIS SUIT?

1. The above issues having been identified by this Honourable Court for determination, the same will now be discussed as hereinbelow.

ISSUE NO. 1- IS THE PLAINTIFF ENTITLED TO A DECLARATION THAT THE PROPERTY KNOWN AS LR.NO.TRANSMARA/MOITA/497 BELONGS TO HIM?

1. The first issue for determination is whether or not the Plaintiff should be declared the rightful owner of the property known as LR.NO.TRANSMARA/MOITA/497.
2. The Plaintiff in his pleadings and testimony before this Honourable Court has claimed to be the registered and rightful owner of the property known as LR.NO.TRANSMARA/MOITA/497.
3. To support this assertion, the Plaintiff produced an Agreement For Sale dated 14.10.2009 and the Certificate of Title in his name issued on the 11.11.2009.
4. Section 26 of the Land Registration Act, No. 3 of 2012 provides as follows; -

“(1) The Certificate of Title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all Courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the Certificate, and the title of that proprietor shall not be subject to challenge, except;-

1. On the ground of fraud or misrepresentation to which the person is proved to be a party; or
2. Where the Certificate of title has been acquired illegally, procedurally or through a corrupt scheme.”
3. The interpretation of the above-mentioned proviso is that a Certificate of Title provides a prima facie evidence of the person registered on the same as the legitimate and lawful owner of the property contained in the said Certificate of Title.
4. In this Case, the Certificate of Title of the property known as LR.NO.TRANSMARA/MOITA/497 is registered in the name of the Plaintiff and therefore it goes without saying that the legitimate and lawfully registered proprietor of the said property is one DISHON TAMPATI KISAKA.
5. In essence therefore, this Honourable Court hereby makes a finding that the Plaintiff herein is the lawful registered owner of the property known as LR.NO.TRANSMARA/MOITA/497 to the exclusion of any other person and/or entity.

ISSUE NO.2- IS THE PLAINTIFF ENTITLED TO QUITE OCCUPATION AND/OR USE OF THE PROPERTY KNOWN AS LR.NO.TRANSMARA/MOITA/497?

1. The second issue for determination is whether or not the Plaintiff is entitled to quite possession and use of the property known as LR.NO.TRANSMARA/MOITA/497.
2. As already determined in Issue No.1 hereinabove, the Plaintiff is indeed the registered owner of the property known as LR.NO.TRANSMARA/MOITA/497.
3. However, in the Plaintiff’s pleadings and testimony, it is alleged that the Defendants herein have since trespassed and encroached into the property known as LR.NO.TRANSMARA/MOITA/497 without any justification and/or permission of the Plaintiff.
4. The Plaintiff further testified that despite a demand to vacate being issued to the Defendants, the same has not been complied with and therefore his occupation and use of the property known as LR.NO.TRANSMARA/MOITA/497 has been hindered by the Defendants.
5. Section 24 of the Land Registration Act, No. 3 of 2012 provides as follows; -

“Subject to this Act-

1. 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; and
2. ………………………………………………………………………”
3. The wording of Section 24 of the Land Registration Act, No. 3 of 2012 expressly provide that where a person or entity is registered as the proprietor of any land, then such a registered owner shall have the right to occupy and use the same to the exclusion of any other person and/or entity.
4. In this instant case, the Plaintiff is the duly registered owner of the property known as LR.NO.TRANSMARA/MOITA/497 and is therefore empowered under Section 24 of the Land Registration Act, No. 3 of 2012 to enjoy all the rights within the said property including its occupation and use thereof to the exclusion of any other person and/or entity.
5. The Defendants occupation and/or use of the property known as LR.NO.TRANSMARA/MOITA/497 can only be with the permission, consent and/or knowledge of the Plaintiff.
6. So far, there is no Consent and/or permission that has been tabled before this Honourable Court that would ratify the Defendants occupation and/or use of the property known as LR.NO.TRANSMARA/MOITA/497 registered in the name of the Plaintiff.
7. In essence therefore, this Honourable Court is of the considered finding that the Plaintiff is the only person with the right to occupy, use and/or enjoy the property known as LR.NO.TRANSMARA/MOITA/497 to the exclusion of any other person and/or entity.

ISSUE NO.3- IS THE PLAINTIFF ENTITLED TO THE PRAYERS SOUGHT IN THE PLAINT?

1. Third issue for determination is which prayers should be granted to the Plaintiff herein.
2. The first prayer is one seeking for a permanent injunction against the Defendants, whether by themselves or their agents or otherwise howsoever from trespassing and/or remaining on or continuing in occupation of the property known as LR.NO.TRANSMATA/MOITA/497.
3. As already determined in Issue No.2, the Plaintiff is the duly registered owner of the property known as LR.NO.TRANSMARA/MOITA/497 and as such, Section 24 of the Land Registration Act, No. 3 of 2012 grants him the rights and privileges to use and utilise the same to the exclusion of any other person and/or entity.
4. It therefore goes without saying that the Defendants themselves or their agents, servants, employees should be prohibited from any use and/or occupation of the property known as LR.NO.TRANSMARA/MOITA/497 unless with the permission and/or consent of the Plaintiff.
5. So far, no such consent and/or permission from the Plaintiff to use and/or occupy the property known as LR.NO.TRANSMARA/MOITA/497 has been presented by the Defendants and consequently thereof, this Honourable Court hereby makes a finding that the Plaintiff is entitled to an order of permanent injunction against the Defendants prohibiting them from any further use and/or occupation of the property known as LR.NO.TRANSMARA/MOITA/497 as the same belongs to the Plaintiff.
6. The second prayer by the Plaintiff is an order of eviction to issue against the Defendants herein.
7. According to the Honourable Court’s determination in Issue No. 1, it is clear that the property known as LR.NO.TRANSMARA/MOITA/497 is the lawful property of the Plaintiff herein.
8. Article 40 of the Kenyan Constitution, 2010 provides for the protection of the right to property.
9. This Honourable Court has a duty under the Constitution to protect the Plaintiff’s property from being unlawfully being acquired by any person of entity without following the right procedure.
10. In this instance, the Defendants occupation and/or use of the property known as LR.NO.TRANSMARA/MOITA/497 in a manner that is not lawful should be entertained and/or permitted.
11. The only available remedy to protect the Plaintiff’s private property known as LR.NO.TRANSMARA/MOITA/497 is by removing the Defendants from the said property through an Order of eviction.
12. In other words, this Honourable Court hereby makes a finding that the Plaintiff is entitled to an order of eviction against the Defendants on the property known as LR.NO.TRANSMARA/MOITA/497.
13. The third prayer by the Plaintiff is one for general damages as well as mesne profits.
14. However, this aspect of the reliefs was not touched by the Plaintiff during his testimony or final submissions.
15. In the absence of any evidence and proof of the damages suffered by the Plaintiff, this Honourable Court declines to grant any reliefs in terms of general damages and/or mesne profits thereof.
16. On the fourth prayer which is directed to the police to ensure enforcement and compliance of this orders of this Honourable Court, the same is granted.

ISSUE NO.4- WHO BEARS THE COSTS OF THIS SUIT?

1. The last issue for determination is that of costs.
2. It is trite law that costs follow the event.
3. In this case, the Plaintiff has been successful in prosecuting the Plaint and is entitled to costs.
4. In essence therefore, the Defendants will bear the costs of this suit.

CONCLUSION

1. In conclusion therefore, this Honourable Court hereby makes the following Orders in determination of the Plaint herein;-
2. A DECLARATION BE AND IS HEREBY MADE TO THE EFFECT THAT THE PLAINTIFF IS THE DULY LAWFUL AND REGISTERED OWNER OF THE PROPERTY KNOWN AS LR.NO.TRANSMARA/MOITA/497.
3. AN ORDER BE & IS HEREBY MADE DIRECTING THE DEFENDANTS, THEIR AGENTS, EMPLOYEES AND/OR ASSIGNEES TO REMOVE, VACANT AND/OR HAND OVER VACANT POSSESSION OF THE PROPERTY KNOWN AS LR.NO.TRANSMARA/MOITA/497 TO THE PLAINTIFF WITHIN 90 DAYS FROM THE DATE OF THIS JUDGEMENT.
4. IN THE EVENT THE DEFENDANTS FAIL, REFUSE AND/OR NEGLECT TO COMPLY WITH ORDER NO. B HEREINABOVE, AN AUTOMATIC EVICTION ORDER SHALL ISSUE AFTER THE EXPIRY OF THE 90 DAYS PERIOD ISSUED THEREIN.
5. THE DEFENDANTS WILL BEAR THE COSTS OF THIS SUIT.

IN THE PRESENCE OF:

COURT ASSISTANT: MR. NGENO

ADVOCATES FOR THE PLAINTIFF:MS.KATAO

ADVOCATES FOR THE DEFENDANTS:N/A