Mwega v Kailutha & 4 others

the late Justus Mbaabu M’Mwithimbu for Kshs.13 million, took vacant possession and built up a permanent house. He produced the sale agreement, certicate of title, police order for the arrest of the defendants after they started causing chaos on the land, bank transfer of monies from Barclays Bank to the vendor, letter from District Land Adjudication and Settlement ocer dated 26.8.2019 and photographs showing development as P. Exhs 1-6 respectively. 4. The plainti submitted that based on the documentary evidence produced he was entitled to protection of his property under Sections 24 & 25 of the Land Registration Act since his title to the land had not been challenged at all. The plainti relied on Propwa Company Ltd vs Justus Nyamo Gatondo & another (2020) eKLR on the proposition that as a title holder his rights and privileges over the suit property were protectable in law. 5. Further, the plainti submitted that based on the evidence tabled before court he had demonstrated that the defendants were trespassers who had resorted to force and violence hence making it dicult for him to develop his land. Relying on Karuru Munyorori vs Joseph Ndumia Murage & another, Nyeri HCCC No. 95 of 1988, the plainti urged the court to nd his evidence uncontroverted and proceed to grant the reliefs sought. 6. The plainti has sought for declaratory orders that he is the owner of LR No. Ruiri/Rwarera/2447. He has produced a sale agreement dated 8.10.2013 and proof of payment of the consideration by way of a bank slip. Further he produced a title deed issued on 9.1.2019 which under Sections 24, 25 & 26 of Land Registration Act is prima facie evidence of ownership of the suit land. This has been conrmed by the letter dated 26.8.2019 from the District Land Adjudication Ocer. 7. In terms of developments the plainti produced photographic evidence. He submitted that his ownership, use and occupation is under attack and threats from the defendants as evidenced by P. exhibit 3, a police order to arrest, a P3 form and photographs showing some illegal structures belonging to the defendants. 8. All the above documentary evidence has not been challenged by the defendants despite adequate notice given to enter appearance or attend the hearing. Therefore, given this credible evidence there is no doubt that the plainti deserves orders to guarantee him quiet and peaceful enjoyment of his property. 9. A permanent injunction is normally granted upon the hearing of the suit since it determines the rights of the parties before the court. It perpetually restrains the commission of an act by the defendant in order for the rights of the plainti to be protected. 10. In Nguruman Ltd vs Jan Bonde Nielsen & 2 others (2014) eKLR, the court said the foundation of any order of injunction temporary or permanent, must be met by surmounting sequentially the three pillars namely a prima facie case, demonstration of irreparable injury or damage and any doubts as to (a) & (b) by showing the balance of convenience tilts in favour of granting the injunction. 11. In this matter, the plainti has demonstrated that he has valid proprietary rights which have been threatened by the defendants with no justication. He has said the defendants have gone to an extent of erecting illegal structures on his land and eorts to remove them have borne no fruits since the defendants are violent, chaotic and armed with crude weapons as well as guns. 12. The plainti has produced evidence of the actual bodily harm. Despite service of summons and hearing notices the defendants have failed to oppose the suit. 13. The upshot is that the plainti has proved his case on a balance of probabilities. The court hereby declares that he is the sole proprietor of L.R No. Ruiri/Rwarera/2447 to the exclusion of the defendants; that the defendants jointly and severally are ordered to remove all illegal structures and https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14517/eng@2022-11-02 2

page 2 of 3

buildings on the suit land within 3 months from the date hereof in default which they shall be forcefully be evicted at their cost in line with the law on eviction under the supervision of the area Sub County Police Commander. A permanent injunction be and is hereby issued barring and restraining the defendants jointly and severally from entering, remaining, occupying, erecting and in any way whatsoever interfering with the plainti’s quiet enjoyment and occupation of the suitland. Costs to the plainti. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT THIS 2ND DAY OF NOVEMBER, 2022 In presence of: C/A: Kananu Ashaba for plainti HON. C.K. NZILI ELC JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14517/eng@2022-11-02 3

page 3 of 3