REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAKURU

CASE No. 22 OF 2014

TERESIA WANGARI GACHOKA                                                                         

SAMMY MWANGI GACHOKA (suing as the administrators of the estate      

of the late GACHOKA KAHAWA) ...................................................PLAINTIFF

VERSUS

FLORENCE NDUTA ...............................................................1^ST DEFENDANT

FLORENCE WAMBUI ...........................................................2^ND DEFENDANT

JUDGMENT

1. Through amended plaint filed on 11^th February 2014, the plaintiffs averred that they are the administrators of the estate of Gachoka Kahawa (deceased) who is the registered proprietor of all a parcel of land known as Nakuru Municipality Block3/1104 (the suit property). That the defendants encroached on the suit property and commenced developments thereon without consent. That efforts to get the defendants to vacate had been futile. The plaintiffs therefore prayed for eviction of the defendants from the suit property and a permanent injunction restraining them, their agents, servants and or employees from entering into or disposing of the suit property.

2. Despite being served, the 1^st defendant did not enter appearance or file any defence. She did not attend the hearing of the suit either. On the other hand, the 2^nd defendant who entered appearance did not file any defence. Ultimately, counsel for the plaintiff informed the court on 11^th May 2017 that the 2^nd defendant passed away on 6^th June 2014. No application for substitution was filed in respect of the case against her. Consequently, in view of the provisions of Order 24 Rule 4 of the Civil Procedure Rules, the suit against the 2^nd defendant had abated on 6^th June 2015.

3.  At the hearing, only the 1^st plaintiff testified. She stated that Gachoka Kahawa (deceased) was her husband and that she obtained letter of administration for his estate in High Court Succession Cause No. 178 of 1998 (Nakuru) followed later by Certificate of Confirmation of Grant on 2^nd June 2011.  I produce a copy as exhibit. She produced a copy of the Certificate of Confirmation of Grant as an exhibit. She added that the deceased owned a parcel of land in Nakuru being Nakuru Municipality Block 3/1104 (the suit property) located in Shabab area.  She produced a copy of Certificate of Lease for the plot dated 12^th November 1993 as an exhibit. She added that the defendants are occupying the plot. They constructed wooden and mud walled houses on it.  She never allowed them to do so and has told them to vacate but they refused to vacate. They claim that the plot was given to them by the Municipal Council of Nakuru so that they could sell charcoal there.  However, the council wrote to them a letter dated 10^th November 1992 telling them to vacate the plot.  She therefore urged the court to grant judgment as prayed in the plaint.

4.   The plaintiffs’ case was closed at that point. There being nobody to prosecute the defence case, it was also closed. In brief written submissions, counsel for the plaintiffs stated that the plaintiffs had proved their case and urged the court to enter judgment as prayed. No submissions were filed for or by the surviving 1^st defendant.

5.   I have considered the pleadings, the evidence and the submissions herein. As already noted, the claim against the 2^nd defendant abated. The plaintiffs’ claim against the 1^st defendant is uncontested and the evidence tendered remains uncontroverted. From the material placed before the court, I am satisfied that the plaintiffs are the administrators of the estate of Gachoka Kahawa and that they obtained certificate of confirmation of grant in respect of his estate on 2^nd June 2011 in High Court Succession Cause No. 178 of 1998 (Nakuru). The suit property herein was owned by the deceased as can be seen from the copy of certificate of lease and was distributed to the plaintiffs to hold in half shares each. I am equally persuaded that the 1^st defendants is occupying the suit property and that she has constructed wooden and mud walled houses on it without the plaintiffs’ consent.  In sum, I am satisfied that the plaintiffs have proven their case against the 1^st defendant on a balance of probabilities.

6.   I therefore enter judgment for the plaintiffs against the 1^st defendant as follows:

i. I order the 1^st defendant to vacate from the parcel of land known as Nakuru Municipality Block3/1104 within thirty (30) days from the date of delivery of this judgment.

ii. In default, the 1^st defendant be evicted from the parcel of land known as Nakuru Municipality Block3/1104. The eviction to be done in accordance with the provisions of section 152G (1) (d) to (h) of the Land Act, 2012.

iii. I grant a permanent injunction restraining the 1^st defendant, her agents, servants and/or employees from entering into or disposing of the parcel of land known as Nakuru Municipality Block3/1104.

iv. Costs to the plaintiffs.

7.   It is so ordered.

Dated, signed and delivered in open court at Nakuru this 22^nd day of May 2019.                         

D. O. OHUNGO       

JUDGE

In the presence of:

Ms Cheruto holding brief for Mrs Ngugi for the plaintiff

No appearance for the 1^st defendant

No appearance for the 2^nd defendant

Court Assistants: Beatrice & Lotkomoi