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|Case Number:||Civil Suit 136 of 2010|
|Parties:||PHEOBE ATIENO NYANGO v BENSON KIMANI|
|Date Delivered:||10 Nov 2011|
|Court:||High Court at Kisumu|
|Judge(s):||Hilary Kiplagat Chemitei|
|Citation:||PHEOBE ATIENO NYANGO v BENSON KIMANI  eKLR|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE HIGH COURT OF KENYA
CIVIL SUIT NO. 136 OF 2010
(a) Order of eviction of the defendant from land parcel number KISUMU /FORT TERNAN 68/434
(b) Costs of suit.
The defendant after being served with the summonses and the plaint did file a defence on 16th October 2010.
She further said that she learned with shock when she came back to the suit land that the defendant had trespassed on the land and had constructed some structures. She made efforts to have him out of the land by writing letters including the letter from the defendant father exhibit number 11 advising the defendant to vacate the land and joint him in Nakuru. The defendant refused hence this suit.
On my analysis, it’s not in dispute that the seller of the land John Karanja Mbole is the father to the defendant. It’s not in dispute that he sold the land to the plaintiff. What is not clear however is whether or not at the time of the sale the applicant was in the suit property. He didn’t call any witness to support his arguments. He didn’t call any further evidence that he was an Internally Displaced Persons (IDP). The court takes judicial notice of this issue of IDP but one has to lay the basis and established the facts. Each case has to be handled on its own merits. I have no prove before me that indeed the defendant was such a person.
Further he has not laid any basis to establish that indeed his father held the land in trust for him and his siblings. The land was registered and given to the defendant father on 18th December 1991. The defendant was then an adult. Frankly he ought to have ventured for his land as an adult. I don’t find this argument therefore plausible. The defendant father has advised him to go to Nakuru since he has purchased another land and I don’t with respect see any contradiction. He should pursue where his family is. The defendant has further argued that he has obtained the ownership and usage of the suit land by way of adverse possession. Although this may be the case, the defendant has not brought himself within the requirements of claiming the suit property in such a style. He should instead file an originating summons. Worse still he has not filed any counter claim in this suit.
Having read the submission by both counsels for the plaintiff and the defendant I am incline to grant the plaintiffs wishes. For the above reason the plaintiff suit is allowed as prayed with costs. I shall however allow the defendant forty-five (45) days from the date of reading of this judgment to vacate the suit land, namely KISUMU/FORT TERNAN 68/434