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Original judgment

Chepkiyeng v Chetambe

Chepkiyeng v Chetambe (Environment & Land Case 41 of 2018) [2023] KEELC 22489 (KLR) (20 December 2023) (Judgment) Neutral citation: [2023] KEELC 22489 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KAJIADO ENVIRONMENT & LAND CASE 41 OF 2018 MN GICHERU, J DECEMBER 20, 2023 BETWEEN BRENDA JEROTICH CHEPKIYENG ..................................................... PLAINTIFF AND REDEMPTA SUSAN CHETAMBE ....................................................... DEFENDANT JUDGMENT 1. The third defendant Brenda Jerotich Chepkiyeng, in her counterclaim dated 24/7/2019 seeks the following reliefs against the plainti Redempta Susan Chetambe Kehr. i. A declaration that the plainti in the counterclaim is the absolute owner of L.R. Ngong/ Ngong/4026, suit land. ii. An order of eviction against the defendant to the counter claim whether by themselves, their employees, agents and/or servants or otherwise. iii. In the alternative to (b) above a mandatory injunction compelling the defendant to the counterclaim whether jointly or severally or by themselves, their employees, servants and/or agents to otherwise vacate the suit property. iv. A permanent injunction restraining the defendant to the counterclaim or anybody claiming through her form selling, disposing, transferring, changing, pledging, leasing, wasting, trespassing into, encroaching, fencing o, attempting to fence, entering, constructing, dumping of any material or howsoever dealing with the suit property. v. The OCS Kiserian Police and/or the OCPD Ngong Police Division to enforce the orders issued by this court. vi. Damages for trespasses together with interest thereon at court rates from the date of ling of this suit until the date of payment thereof in fall. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22489/eng@2023-12-20 1

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vii. Costs of the suit. viii. Such further relief that tis court may deem t and just to grant. 2. The third Defendant’s case against the plainti is as follows. On 15/5/2013 she entered into an agreement with the 1st defendant for the purchase of the suit land. The purchase price was Kshs. 6Million. She paid the full amount to the rst defendant. She also paid stamp duty. The suit land was then transferred to the third defendant. When the third defendant tried to take possession of the suit property, she was resisted by the plainti. Every eort that the third defendant has made to take possession has been resisted by the plainti. She therefore prays for the orders as above. 3. In support of her case, the third defendant led the following evidence: i. Witness statement dated 19/7/2019 ii. Copy of agreement for sale dated 15/5/2013 iii. Copy of title deed in the name of rst defendant dated 9/8/2011 iv. Copy of requests for RTGS transfers v. Copies of ocial receipts issued by the 1st defendant vi. Copy of title deed for the suit land in the 3rd defendant’s name. vii. Copy of the certicate of ocial search for the suit land in the name of the third defendant 4. The plainti led a defence to the third defendant’s counterclaim dated 25/11/2019 in which she avers that the sale of the suit land was fraudulent 5. On the date xed for hearing, only the third defendant turned up. The plainti and her counsel did not attend court even though the date had been taken by consent. At the trial, the third defendant testied on oath and adopted her witness statement and documents as her evidence. She then closed her case. 6. In the written submissions dated 20/6/2023, the third defendant’s counsel identied three (3) issues for determination as follows. i. Whether the third defendant has proved her counterclaim on a balance of probabilities ii. Whether the third defendant is entitled to the orders sought iii. Whether the third defendant is entitled to damages for trespass and mesne prots. 7. I have carefully considered all the evidence adduced in this case by the third defendant I nd that the issues as identied will determine the dispute. On the rst issue, I nd the third defendant has proved her claim against the plainti on a balance of probabilities. She is not only the registered owner of the said land but she has proved that she obtained the title to the land lawfully and procedurally. She paid for the land which was sold to her by the registered owner. As the registered owner of the suit land, the third defendant is vested with absolute ownership and the plainti’s occupation of the said land without the consent of the third defendant is unlawful. The plainti has no right to occupy the suit land. 8. On the second issue, I nd that the third defendant is entitled to an order of eviction of the plainti from the suit land. This is because the plainti’s occupation if inconsistent with the third defendant’s ownership. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22489/eng@2023-12-20 2

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9. On the nal issue, I nd that the mesne prots and the damages for trespass are not properly pleaded or quantied and proved. In the witness statement dated 19/7/2019, the said mesne prots and damages for trespass are only mentioned in passing at paragraph 10 as follows: “ The plainti is a trespasser on the subject property and I intend to recover damages and or mesne prots from the plainti at the appropriate time” My understanding of this statement is that this not appropriate time. If this was the appropriate time, the amounts would have been stated so that the plainti would have responded to the claim. The third defendant has simply not pleaded enough on those two heads and has also not proved by evidence. 10. For the above stated reasons, I order as follows: a. The plainti be evicted from the suit premises on expiry of 60days from the date hereof if she will not have vacated voluntarily. b. The OCS Kiserian Police Station to enforce the execution order. c. Costs of the suit and for the plainti’s eviction to the defendants. It is so ordered. DELIVERED, SIGNED AND DATED VIRTUALLY ON THE 20TH DAY OF DECEMBER 2023 AT KAJIADO. .......................... M. N. GICHERU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22489/eng@2023-12-20 3

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