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ELCAllowed· [2020] KEELC 382 (KLR)

Pascal Wafula Wambulwa v Jotham Monyo [2020] KEELC 382 (KLR)

Environment and Land Court
9 December 2020
MNMwangi Njoroge
402 words in judgment
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The bottom line

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A Kitale court declared a landowner the rightful owner and ordered a trespasser evicted after the trespasser failed to show up and defend the case.

What this practically means

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Executive summary

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The plaintiff, Pascal Wafula Wambulwa, sued by plaint dated 16/6/2014 seeking a declaration that he is the sole legal owner of Title No. TRANS NZOIA/KIMONDO KIMONDO BLOCK 6/NALULINGO/267, a declaration that the defendant is a trespasser, an order for vacant possession or forcible eviction of the defendant and those claiming under him, plus costs and interest. The plaintiff testified as PW1 and called two witnesses, including an Assistant Surveyor, who confirmed the allotments: the plaintiff received the suit plot while the defendant received Plot No. 262, and the surveyor verified the defendant was occupying the plaintiff's plot and had failed to vacate. When the matter came up for hearing on 17/11/2020, neither the defendant nor his advocate appeared despite service of a hearing notice, and the court deemed the defendant's case closed. The court found the plaintiff's evidence uncontroverted and unshaken by the earlier cross-examination by counsel for the defendant. Holding that the plaintiff had established his claim on a balance of probabilities, the court granted judgment as prayed in prayers (a), (b) and (c) of the plaint. Judgment was dated, signed and delivered at Kitale via electronic mail on 9 December 2020 by Mwangi Njoroge J. No authorities or statutes were cited in the judgment, and the defendant is not named in the text.

Key legal issues

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01

Whether the plaintiff proved ownership of the suit land and the defendant's trespass

Holding

The plaintiff established his claim on a balance of probabilities; the defendant was found to be in occupation of the plaintiff's plot and had failed to vacate it

Reasoning

The plaintiff testified that he was a member of Trans Nzoia Investment Co Ltd and was allotted the suit plot, while the defendant was allotted a different plot. A surveyor verified the defendant was occupying the plaintiff's plot. The defendant neither appeared at the hearing nor adduced evidence, so the plaintiff's evidence stood uncontroverted and was not shaken by cross-examination.

p. 2

Legal principles established

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  • Uncontroverted evidence may establish a claim on a balance of probabilities

Court orders

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  1. 1.Judgment granted to the plaintiff as prayed in prayers Nos. (a), (b) and (c) of the plaint dated 16/6/2014, namely a declaration that the plaintiff is the sole legal owner of Title No. TRANS NZOIA/KIMONDO KIMONDO BLOCK 6/NALULINGO/267, a declaration that the defendant is a trespasser, and an order that the defendant vacate the land failing which he be forcefully evicted together with anybody claiming under him
Jurisdiction invoked
First-instance suit under the plaint filed in the Environment and Land Court (specific statutory basis not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Pascal Wafula Wambulwa v Jotham Monyo [2020] KEELC 382 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/382/eng@2020-12-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.