[2018] KEELC 2341 (KLR)
The court found that the plaintiff had proved his case on a balance of probabilities, primarily relying on the unchallenged surveyor's report dated 9/3/2018, which established that the defendant's parcel had encroached on the plaintiff's land. The absence of any defence or contrary evidence from the defendant...
Source-derived case information.
- Citation
- [2018] KEELC 2341 (KLR)
- Parties
- Plaintiff: Charles Laalia M’Linkaibua; Defendant: Joseph Njilithia M’Akwalu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 172 of 2017
- Procedural Posture
- Land and Property Dispute / Judgment
- Outcome
- Plaintiff's case proved; mandatory injunction granted; boundary to be fixed as per surveyor's report; costs awarded to plaintiff.
- Legal Topics
- Boundary Disputes, Land Encroachment, Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Laalia M’Linkaibua
Plaintiff
Joseph Njilithia M’Akwalu
Defendant
Procedural Posture
Land and Property Dispute / Judgment
Legal Issues
- 1 Whether the defendant encroached on the plaintiff's land parcel Tigania/Kitharene/1301.
- 2 Whether the plaintiff is entitled to a mandatory injunction restraining the defendant from interfering with the boundary.
- 3 Whether the boundary should be fixed as per the surveyor's report.
Ratio Decidendi
The court found that the plaintiff had proved his case on a balance of probabilities, primarily relying on the unchallenged surveyor's report dated 9/3/2018, which established that the defendant's parcel had encroached on the plaintiff's land. The absence of any defence or contrary evidence from the defendant further strengthened the plaintiff's case. The court concluded that the plaintiff was entitled to a mandatory injunction restraining the defendant from interfering with the boundary and ordered the sub county surveyor to fix the actual boundary as per the report. The plaintiff was directed to meet the surveyor's costs, while the defendant was condemned to pay the costs of the suit.
Court Disposition
Plaintiff's case proved; mandatory injunction granted; boundary to be fixed as per surveyor's report; costs awarded to plaintiff.
Orders
- A mandatory injunction restraining the defendant from destroying the common boundary between land parcels Tigania/Kitharene/1301 and 1323 is issued.
- The sub county surveyor Meru North is ordered to fix the actual boundary between the two parcels as per the report dated 9/3/2018.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 172 OF 2017
CHARLES LAALIA M’LINKAIBUA...................... PLAINTIFF
VERSUS
JOSEPH NJILITHIA M’AKWALU.......................DEFENDANT
JUDGMENT
1. The plaint clearly indicates that this is a boundary dispute between parcels of land Tigania/Kitharene/1301 and 1323. The suit proceeded exparte as defendant did not participate in the proceedings despite the fact that he was served with suit documents.
2. The court had directed that the surveyor was to visit the scene and file a report there of. I have perused that report dated 9/3/2018 and it indicates that defendant’s parcel No. 1323 has encroached on plaintiffs parcel No. 1301as per the sketch map attached.
3. I have no reason to doubt that the report of the surveyor dated 9. 3.2018 is helpful. The said report buttresses plaintiff’s contention that defendant had embarked on destroying the common boundary. On a balance of probability, I find that plaintiff has proved his case.
Orders
4. (a) An order of mandatory injunction is hereby issued restraining the defendant from destroying the common boundary between land parcel NO. Tigania/Kitharene/1301 & 1323 respectively.
(b) An order is issued for the sub county surveyor Meru North to fix the actual boundary between the two parcels as per his report dated 9/3/2018.
(c) Plaintiff is to meet surveyor’s costs of fixing the boundary.
(d) Defendant is condemned to pay costs of the suit.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 25TH DAY OF JULY, 2018 IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
Carlpeters Mbaabu holding brief for Joel Mutuma for plaintiff
Plaintiff
HON. LUCY. N. MBUGUA
ELC JUDGE