[2014] KEHC 1330 (KLR)
The court found that the plaintiffs' evidence of encroachment by the defendant onto their land was unchallenged, as the defendant failed to enter appearance or contest the claim. The plaintiffs demonstrated ownership of the property and the defendant's continued occupation and construction on the disputed portion....
Source-derived case information.
- Citation
- [2014] KEHC 1330 (KLR)
- Parties
- Plaintiff: Amina Mbara Awadhi; Plaintiff: Ahmada Hamid; Defendant: Swaleh Abubakar
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 214 of 2013
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- plaintiffs' claim allowed as prayed in the plaint; judgment entered for the plaintiffs.
- Judges
- SN Mukunya
- Legal Topics
- Trespass to Land, Vacant Possession, Land Encroachment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amina Mbara Awadhi
Plaintiff
Ahmada Hamid
Plaintiff
Swaleh Abubakar
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the defendant has encroached by 29.578 square meters into the plaintiffs' plot subdivision Number 9083 (original No. 6208/19) of Section 11 Mainland North.
- 2 Whether the plaintiffs are entitled to an order for vacant possession and restoration of beacons.
Ratio Decidendi
The court found that the plaintiffs' evidence of encroachment by the defendant onto their land was unchallenged, as the defendant failed to enter appearance or contest the claim. The plaintiffs demonstrated ownership of the property and the defendant's continued occupation and construction on the disputed portion. In the absence of any defence or contrary evidence, the court accepted the plaintiffs' version of events and held that the defendant had trespassed onto the plaintiffs' land. The court concluded that the plaintiffs were entitled to the reliefs sought, including an order for the defendant to vacate the encroached portion and restore the property boundaries as per the beacons.
Court Disposition
plaintiffs' claim allowed as prayed in the plaint; judgment entered for the plaintiffs.
Orders
- The defendant shall vacate the encroached portion of the plaintiffs' land (subdivision Number 9083, original No. 6208/19, Section 11 Mainland North).
- The defendant shall restore the beacons to their original position.
Full Case Text
Judgment text and source record
20 paragraphs
COPY
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC. NO. 214 OF 2013
AMINA MBARA AWADHI
AHMADA HAMID .......................................................... PLAINTIFFS
- VERSUS -
SWALEH ABUBAKAR ........................... .......................... DEFENDANT
JUDGMENT
[1] The plaintiffs claim against the defendant is that the defendant has encroached by 29. 578M Square in to their plot subdivision Number 9083 (original No. 6208/19) of Section 11 Mainland North. The plaintiffs say that they want to start building a home but are prevented to do so by the trespass of the plaintiff on their land. They aver that they have given the defendant sufficient time to give up vacant possession. The plaintiffs requested for judgment on 29th January, 2014 after service on the defendant and failure by the defendant to enter appearance.
[2] Ahmada Ahmed Hamid gave evidence and explained how the defendant has entered his plot and that half of his house is on the plaintiffs land at Mishomoroni. He informed the court that he bought his house in 2004 and produced a title deed. He gave evidence that he has asked the defendant to remove his structures. That he has not done so. that he continues to build and he says that he will not move.
The plaintiff said that he needed an order to ask the defendant to move out of his land and place back the beacons.
[3] The defendant was served in this case and he did not enter appearance. The plaintiffs evidence herein is not controverted at all. The plaintiffs claim against the defendant succeeds and is allowed as prayed in the plaint.
Dated and delivered in open court at Mombasa this 14th day of November, 2014.
S. MUKUNYA
JUDGE
14. 11. 2014
In the presence of:
Miss. Fwaya advocate for Mr. Kideki advocate for the plaintiff'