REPUBLIC OF KENYA

IN THE  ENVIRONMENT  AND LAND COURT

AT MAKUENI

MISC APP. NO. 29 OF 2017

FORMERLY MACHAKOS MISC APP. NO. 160 OF 2016

BENEDICT MATHEKA MULEI................................PLAINTIFF/APPLICANT

VERSUS

GEORGE KINUTHIA.......................................DEFENDANT/RESPONDENT

JUDGMENT

1) Benedict Matheka  Mulei, the plaintiff  herein, is a resident of Mithanga Village, Masii  Location in Machakos   County.  He claims to be the owner of plot number 959 located at Emali Trading Centre.

2) By his plaint dated 26^th February, 2016 and filed before the Principal Magistrate court on 1^st March, 2016 the plaintiff prays for judgement against the defendant for a permanent injunction to restrain the defendant, servants and/or his agents  from trespassing encroaching, intermeddling, constructing and (sic)any other  manner of interference of the plaintiff’s   plot number 959 plus costs and interest  of the  suit.

3) This suit was initially filed at the Principal Magistrate’s Court Kajiado. The suit was subsequently transferred from the Principal   Magistrate’s Court Kajiado to the Environment and Land Court vide the notice of motion application dated 21^st June,  2016 and filed in court on the 23^rd June, 2016. The application was allowed on the 26^th July, 2017.

4) The defendant has never entered appearance nor filed his defence  within the prescribed  period  as can be  seen from the affidavit of service dated the 16^th March, 2016 and filed in court on the 17^th March, 2016. Hearing proceeded by way of formal proof.

5) During the hearing of the plaintiff’s suit on the 23^rd October, 2017, he adopted his written statement dated 18^th August, 2017 and filed in court on even date as his evidence. He also produced the documents in his list of documents dated 26th February, 2016 and filed in court on 1^st  March, 2016  as  PEXNos. 1,2,3,4(a) to (k) respectively.

6) His evidence was that he is the lawful owner of plot number  959 measuring  50 feet by100 feet situated in Emali Trading   Centre. He went on to say that he acquired the plot from the defendant at a consideration of Kshs.200, 000 vide the sale agreement (PEXNo. 2) dated the 26^th March, 2013. He added that he paid the transfer fees and the plot in question was transferred into his name and he has been paying rates as and when demanded by the relevant authorities as can be seen from the rates receipts marked as PEX No.s 4(a) to (c) respectively.

7) The plaintiff further clarified that the original owner of plot number  959 was  Alex Kipigat Ndaiis who was introduced to him by the defendant.  That upon introduction by the defendant, Ndaisi applied for  transfer  in the plaintiff’s  name. He clarified that the illegal construction by the defendant consist of a wall which the he had not allowed the defendant to construct.

8) The plaintiff revealed that the defendant, his servants and/or agents have trespassed into his property where they have proceeded to erect illegal buildings and also persistently committed wanton  acts of destruction. He said that the defendants illegal acts have prevented him from quiet use and possession of his lawful property and pointed out that the defendant and his servant and/or agents have declined to heed his pleas for them to vacate  the suit premises.

9) The plaintiff’s counsel filed his submissions on the 8^th November, 2017  same being  dated the 7^th November, 2017.

10) The counsel framed three issues for determination. These were

1. Whether  the defendant   was properly served

2. Whether  the plaintiff has proved his case on a balance of probabilities

3. Whether  the plaintiff is entitled to an order of costs

11) Regarding the first issue the counsel referred the court to the affidavit  of service which according to the consent  it  is dated   17^th March, 2016.

12) The affidavit of service  is actually  dated  17^th March, 2016 and  was  filed  in court  on  the 17^th March, 2016.

13) From  the said affidavit of service, there is no doubt that the defendant was indeed served  with summons to  enter  appearance and  to file his defence  as well as reply to the  notice of motion application  dated 26^th February, 2016 but for   reason  best  known to himself, the  defendant chose not to.

14) On the issue of whether the plaintiff has  proved his  case  on a balance of probabilities, the  plaintiff’s counsel referred  the  court to the case of John Ndunga Kaguiya Vs Daniel Gicheha [2015] eKLR  where it was  held:-

“ As  there is evidence that the  plaintiff is the beneficial owner of the suit  property and there being no evidence to show that the defendant  has any bona fide  claim to the suit property, I find and hold that the plaintiff has established a case for issuance of a permanent injunction to restrain the defendant by himself, his agents, servants and/or employees from trespassing  into the suit property and /or effecting developments thereon.”

15) The counsel added that the plaintiff has produced agreement of sale of  the suit property and a transfer which clearly show that he is the registered owner of plot number  959. The counsel  also relied  on the case of Appollinaris  Bosire Nyamari  Vs Joannes Odera Okwanyo & Another  [2006] eKLR where the court stated that:-

“There is no challenge on the plaintiff’s titles and in the absence of any challenge  the plaintiff is entitled to have  peaceful and unhindered enjoyment of his property rights.  On the basis of the evidence adduced by the plaintiff, I am satisfied the defendants have encroached and/or trespassed onto the suit property. I hold the plaintiff’s suit is proved on a balance of probabilities and I accordingly  enter judgment in favour of the plaintiff…”

and asserted that the  plaintiff’s ownership of the suit property has not been controverted by the defendant who  failed to enter appearance and filed  his statement of defence.  I fully associate myself  with the two authorities and I hold  that the plaintiff  has proved his case on  a balance of probabilities.

16) On the issue of costs the plaintiff’s counsel referred the court  to Judicial Hints on Civil  Procedure by Retired  Justice Kuloba where he observes that “

a. …a successful  party cannot be deprived of his costs merely because the suit proceeded ex parte or uncontested. This is  to say , the fact that the unsuccessful party did not contest the case  is not in itself a ground  for refusal of costs but it is a factor that can be taken  into account if other good reasons exists.  The giving or absence of notice to sue, before a suit is instituted is a relevant consideration in awarding  costs. This is a circumstance in which quite apart from misconduct, costs can be refused to a successful party.”

17) The counsel  also  relies on the case of Orix Oil (Kenya ) Ltd Vs Paul Kabeu & 2 others [2014]eKLR where the court stated that :-

a. “… the court should  have  been guided by the law  that costs follow the event, and the Plaintiff being the successful party should ordinarily be awarded costs unless the conduct is such that is would  be denied  the costs or the successful issue was not attracting costs. None of those deviant factors are present in this case and the court would still have awarded costs to the Plaintiff, which I do.”

18) I see no reason why the plaintiff who is successful in his suit   should not be awarded costs and in my judgment, I will award him the same.

19) Arising from the foregoing, I hereby proceed to enter judgement for the plaintiff and against the defendants in terms of prayers (a) and (b) of his plaint.

Signed, Dated and Delivered on this 19^th Day of December 2017

MBOGO C.G

JUDGE

In the presence of;

Mr. Hassan holding brief for Mr. Musyimi for the plaintiff present

No appearance for the defendant

Mr Kwemboi Court Assistant

MBOGO C.G

JUDGE