[2008] KEHC 2042 (KLR)
The court found that the plaintiff had established a prima facie case as the registered proprietor of the suit land. The evidence, including the site visits and the report of the District Land Registrar and Surveyor, confirmed that the defendant had trespassed onto the plaintiff's land and interfered with the...
Source-derived case information.
- Citation
- [2008] KEHC 2042 (KLR)
- Parties
- Plaintiff: Charles Gichana Angwenyi; Defendant: Francis Ombonyo Angwenyi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 153 of 2006
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction
- Outcome
- Plaintiff's application for injunction granted.
- Judges
- DK Musinga
- Legal Topics
- Injunctive Relief, Land Boundary Disputes, Trespass to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Gichana Angwenyi
Plaintiff
Francis Ombonyo Angwenyi
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from interfering with the suit land.
- 2 Whether the defendant trespassed onto the plaintiff's land and caused damage.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case as the registered proprietor of the suit land. The evidence, including the site visits and the report of the District Land Registrar and Surveyor, confirmed that the defendant had trespassed onto the plaintiff's land and interfered with the boundary. The defendant's subsequent claim before the Land Disputes Tribunal was dismissed, further supporting the plaintiff's position. The court concluded that the plaintiff was entitled to the injunctive relief sought to prevent further trespass and interference, and that the defendant should bear the costs of the application.
Court Disposition
Plaintiff's application for injunction granted.
Orders
- A temporary injunction is issued restraining the defendant, his servants, and/or agents from interfering with or dealing with L.R. NO. WEST KITUTU/MWAMONARI/400.
- The defendant shall bear the costs of the plaintiff’s application.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
Civil Suit 153 of 2006
CHARLES GICHANA ANGWENYI ….….........…………PLAINTIFF
VERSUS
FRANCIS OMBONYO ANGWENYI …………….…. DEFENDANT
RULING
On 15th January 2007, the plaintiff filed an application by way of a Chamber Summons brought under order XXXIX rules, 1, 2, & 2A of the Civil Procedure Rules. He sought a temporary order of injunction to restrain the defendant, his servants, and/or or agents form interfering with and/or dealing with L.R. NO.WEST KITUTU/MWAMONARI/400, hereinafter referred to as “the suit land”, which is registered in his (the plaintiff’s) name.
The defendant is the registered proprietor of L.R. NO.KITUTU/MWAMONARI/401, which adjoins the suit land. The plaintiff deposed that the defendant had damaged boundary beacons that had been fixed by the District Land Registrar and trespassed into the suit land and allowed his animals to damage his coffee and Tea plants.
The plaintiff further alleged that the defendant had even been charged with the offence of trespass vide KISII CM CR.CASE NO.1881 of 2006. The plaintiff had suffered loss and damage as a result of the defendant’s acts of trespass.
The defendant denied the plaintiff’s averments and stated that it was the plaintiff who had severally trespassed onto his parcel of land. He added that the plaintiff, who is his brother, had brought many civil and criminal cases against him for no apparent reason.
The court granted interim orders of injunction and directed the Deputy Registrar, the District Surveyor, the area chief and the parties to visit the suit land and have the beacons pointed out. The site visit was done on 2nd March 2007. Thereafter a report was filed and it was established that there were no beacons on the ground. In April 2007, the District Land Registrar and the District Surveyor and the parties went back to the suit land. The surveyor carried out appropriate measurements and re-established the boundary delineating the two parcels of land. Concreted Cider posts were erected.
Subsequent thereto, the defendant filed before Marani Land Disputes Tribunal, Land Dispute Case NO.7 of 2007 claiming the entire suit land. The Tribunal dismissed the case on 21st June, 2007.
From the foregoing, it is clear that the defendant has indeed trespassed onto the suit land and the orders sought by the plaintiff against him must be granted which I hereby do. The defendant shall bear the costs of the plaintiff’s application.
DATED, SIGNED and DATED at KISII this 11th day of July, 2008
D. MUSINGA
JUDGE
Delivered in open court in the presence of:
Mr. Ochwangi for the Plaintiff
Mr. Otieno HB for Mr. Minda for the Defendant
D. MUSINGA
JUDGE