REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 218 OF 2012

MOHAMED DUBA GALGALO .............. PLAINTIFF

VERSUS

YUSUF HAJI ........................... DEFENDANT              

JUDGMENT

1. The Plaintiff in HCCC No 217 od 2012 Yusuf Haji filed this suit against the Defendants Mohammed Bin Mohamed Tuano and Mohammed Duba Galgalo seeking;

a) An Order to be issued to revoke the 1^st and 2^nd Defendants sale agreement and transfer of title deed CR 8734/127 being sub-divisions No 10461 (Original No 632/2/) Section I/MN on survey plan No 217809 comprised title deed dated 26/4/2011, costs of this suit until they conduct further subdivision of the said plot over my share.

b) Interest on court rates.

c) Any other or further relief as this Honourable Court may consider just.

2. In HCCC No 218 of 2012 the Plaintiff Mohammed Duba Galgalo has filed a suit against the Defendant seeking;

a) A mandatory injunction to compel the Defendant by himself, his servants and/or agents or otherwise howsoever to demolish and remove his illegal structure from the Plaintiff’s said parcel of land and cease trespassing thereon forwith.

b) Damages for trespass.

c) Costs of this suit and interest thereon at court rates.

d) Any other or further relief that this Honourable Court may deem fit and just to grant.

3. On 20/2/2013 it was agreed that the two files be consolidated and be heard together since the parties and the subject matter were the same.

Upon consolidation there was an attempt at mediation. The same did not bear any fruit hence no award was filed in court.

4. On 19/1/2017, the Plaintiff in HCCC No. 218 of 2012 fixed the suit for hearing on 4/4/2017. On 4/4/2017 when the matter came up for hearing, the Defendant who was fully served neglected to attend the hearing. The court upon being satisfied that the Defendant had been served directed that the matter do proceed ex parte.

5. It is the Plaintiff’s (Mohammed Duba Galgalo) case that he bought the house from Mohammed Birluano. He described it as Plot Number 10467 Section I Mainland North. He produced the certificate of title as exhibit PI. He told the court that the plot is registered in his name.

He further told the court that the Defendant who owns the neighboring plot has encroached on his plot. The states that he called a surveyor who confirmed the boundary but the Defendant disputed.

He also produced a copy of the sale agreement as exhibit P2.

6. Upon being served with copies of plaint and submissions to enter appearance, the Defendant (Yusuf Haji) filed a statement of defence dated 11/1/2013. He denied each and every allegation on the plaint.

7. I have considered the evidence on record and the exhibits produced by the Plaintiff herein.

The issue for determination is whether he (Mohammed Duba Galgalo) has established a case in a balance of probabilities as against the Defendant and the Plaintiff in HCCC 217 of 2012 (Yusuf Haji).

8. The Plaintiff relies on a copy of title deed and the sale agreement between himself and Mohammed Bin Mohammed Tuano dated 13/5/2011. The Plaintiff case is uncontroverted.

9. The Defendant Yusuf Haji squandered his opportunity to come to court to prove his claim. His claim appears not to be clearly defined. He does not state how his claim arose. Whether he bought it or acquired the same through other means. I find that his claim must fail.

10. Consequently, I find that the Plaintiff herein has made out a good case as against the Defendant. I note that his seeking damages for trespass. The court was not guided the same even by way of written submissions. The Plaintiff did not present before the court what loss he had suffered as a result of the trespass. The court cannot speculate. I therefore decline to award any damages for trespass.

11. The upshot of the matter is that the Plaintiff’s suit (Yusuf Haji) in HCCC No 217 of 2017 fails and the suit is dismissed.

12. Accordingly judgment is entered for the Plaintiff (Mohammed Duba Galgalo) in HCCC 218 of 2012 as follows;

a) That a mandatory injunction do and is hereby issued to compel the Defendant by himself, his servants and/or agents or otherwise howsoever to demolish and remove his illegal structure from the Plaintiffs said parcel of land and cease further trespass therein.

b) Each party to bear his own costs.

It is so ordered.

Dated, signed and delivered at Mombasa on the 1^st day of November 2017.

L. KOMINGOI

JUDGE

1/11/2017