[2014] KEHC 1359 (KLR)
The court found that the plaintiff had established ownership of the subject land through production of the title deed and that the defendant, having failed to respond or challenge the claim, had erected a structure without consent, thereby interfering with the plaintiff's right to use and enjoy his property. The...
Source-derived case information.
- Citation
- [2014] KEHC 1359 (KLR)
- Parties
- Plaintiff: Boniface Nyange Mbwiko; Defendant: Thaddeus Katuvi
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 17 of 2012
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Judgment for the plaintiff.
- Judges
- CM Kariuki
- Legal Topics
- Trespass, Injunctions, Land Ownership, Demolition Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boniface Nyange Mbwiko
Plaintiff
Thaddeus Katuvi
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the defendant trespassed on the plaintiff's land by erecting a structure without consent.
- 2 Whether the plaintiff is entitled to a permanent injunction and demolition of the structure.
- 3 Whether the plaintiff is entitled to costs and interest.
Ratio Decidendi
The court found that the plaintiff had established ownership of the subject land through production of the title deed and that the defendant, having failed to respond or challenge the claim, had erected a structure without consent, thereby interfering with the plaintiff's right to use and enjoy his property. The court held that such interference amounted to trespass and that the plaintiff was entitled to the reliefs sought, including a permanent injunction, demolition of the structure, and costs. The absence of any justification or defence from the defendant further strengthened the plaintiff's case. The court relied on constitutional and statutory provisions protecting property rights...
Court Disposition
Judgment for the plaintiff.
Orders
- A permanent injunction restraining the defendant, his servants and/or agents from building or erecting any structures in front of LR. No. Matungulu/Kyaume/2469.
- The structure erected by the defendant to be demolished.
Full Case Text
Judgment text and source record
22 paragraphs
No.32/2014
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
ELC CASE NO. 17 OF 2012
BONIFACE NYANGE MBWIKO ……..…..……………. ………… PLAINTIFF
VERSUS
THADDEUS KATUVI ………...………….………..…………… DEFENDANT
J U D G M E N T
1. By a Plaint dated 27. 1.2012 the Plaintiff filed the suit herein claiming:
Permanent injunction to restrain Defendant, his servants and/or agents from building or erecting any structures infront of LR. No.Matungulu/Kyaume/2469.
The structure so erected be demolished.
Costs of the suit.
2. The Defendant was served with summons on the 18. 2.2012 but he failed to file defence and the judgment was entered against him. The Plaintiff during the formal proof hearing produced copy of the title deed P. Exhibit 1 after showing the court the original to prove ownership of the subject parcel of land.
3. The Plaintiff testified that the defendant built a structure in form of a kiosk in front of Plaintiff’s plot Matungulu/Kyaume/2489. The structure is a water kiosk vide photographs P. Exhibit 3a & b.
4. The Defendant was served with a demand notice dated 13. 1.2012 produced as Exhibit No.4. The same letter warned the Defendant that the construction was illegal as he (Defendant) was committing the acts of trespass without any consent from the Plaintiff or the approval of the local authority.
5. The Plaintiff claims that the structure blocks the entry into his plot. He cannot send building materials to his plot. He sought the court to grant the orders sought in the Plaint. The Plaintiff has demonstrated his ownership to the subject herein as he is the registered owner of the plot. The Defendant has not impugned the title of the subject matter. Being registered owner, the Plaintiff is entitled to enjoy his property in terms of the provisions of Article 40 of the Constitution of Kenya and the provisions of the Lands Act of 2012.
6. There is no justification for the Defendant’s structure to remain erected in breach of the Plaintiff’s right to us and enjoyment of his property subject matter herein. The court therefore holds that the Plaintiff has proved his case on balance of probabilities and makes the following orders:
7. The court grants all the prayers in the Plaint plus costs and interests.
SignedandDelivered at Machakos this 28th day of November, 2014.
CHARLES KARIUKI
JUDGE