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High CourtAllowed

Martha Bomett & another v Calmax Simiyu

High Court of Kenya
16 May 2013
EOE. Obaga
495 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If you can prove land was allocated to your deceased relative, you can legally claim ownership and force squatters off the property.

What this practically means

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Executive summary

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Martha Bomett and Bernard Kipkoech Bomett sued Calmax Simiyu seeking eviction and a permanent injunction in respect of Plot No. 80/Kosprin Shirika Settlement Scheme. The Defendant was served but neither entered appearance nor filed a defence, so the suit proceeded by way of formal proof. The 1st Plaintiff, administratrix of the estate of her late husband George Bomett, testified that the plot had been allocated to her husband before his death. She produced the letter of allotment, a receipt for Kshs. 3,025 dated 23/11/1983 issued by the Settlement Fund Trustee, a further receipt for Kshs. 45,000 dated 24/04/1997 for accumulated charges paid after her husband's death, and a charge from the Ministry of Lands, Settlement and Physical Planning confirming the deceased as allottee. She also produced a letter from the Director of Land Adjudication and Settlement confirming the allocation, and criminal proceedings in which the Defendant was convicted and fined Kshs. 25,000 for forcible detainer in 2001. The court found the unchallenged evidence established the allocation and that the land had vested in the 1st Plaintiff by virtue of succession, her grant of letters of administration having been confirmed. Holding that the Defendant had no business on the suit land, the court found the case proved on a balance of probabilities, ordered the Defendant's eviction as prayed, permanently injuncted him from interfering with the plot, and awarded the Plaintiffs costs. Judgment delivered by E. Obaga, Judge, on 16 May 2013.

Key legal issues

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01

Proof of title to settlement scheme land through succession

Holding

The Plaintiffs proved on a balance of probabilities that the plot was allocated to the deceased and vested in the administratrix by succession.

Reasoning

The 1st Plaintiff produced the letter of allotment, receipts for payments to the Settlement Fund Trustee, a charge from the Ministry of Lands confirming the deceased as allottee, a confirmation letter from the Director of Land Adjudication and Settlement, and a confirmed grant of letters of administration. The evidence was unchallenged as the Defendant did not appear or file a defence.

p. 2
02

Remedies for unlawful occupation despite prior criminal conviction

Holding

Eviction and permanent injunction were granted notwithstanding the Defendant's continued occupation after conviction for forcible detainer.

Reasoning

The Defendant was convicted and fined Kshs. 25,000 for forcible detainer in 2001 but refused to vacate. The court held he had no business on the suit land and granted the eviction order and permanent injunction as prayed in the Plaint.

p. 1

Legal principles established

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  • A plaintiff who proves allocation of settlement land to a deceased allottee and confirmed letters of administration shows the land vested in them by succession and is entitled to exclusive use.

Court orders

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  1. 1.Order of eviction issued against the Defendant and/or his servants as prayed for in the Plaint
  2. 2.Permanent injunction restraining the Defendant from in any way interfering with Plot No. 80/Kosprin Shirika Settlement Scheme
  3. 3.Plaintiffs awarded costs of the suit
Jurisdiction invoked
Original civil jurisdiction of the High Court (land dispute; formal proof hearing)

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, "Martha Bomett & another v Calmax Simiyu", Case Analysis (2013). . Source:

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