[2021] KEELC 4633 (KLR)
The court found that the plaintiff had proved he was the registered proprietor of the suit land, supported by documentary evidence. The defendants failed to appear or present any defence or legal basis for their occupation. The court held that the plaintiff's rights as proprietor are absolute and indefeasible,...
Source-derived case information.
- Citation
- [2021] KEELC 4633 (KLR)
- Parties
- Plaintiff: Edward Wainaina Gathigi; Defendant: Virginia Gathoni Kibaru; Defendant: George Muingai t/a Green Ring Investment Ltd; Defendant: Eliud Muchiri Gathingira
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Thika
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 228 of 2018
- Procedural Posture
- Land and Property Suit / Judgment After Formal Proof; Default Judgment Against All Defendants
- Outcome
- Judgment for the plaintiff; declaration of exclusive possession, permanent injunction, order for vacant possession within 30 days, no order as to costs.
- Judges
- BC Koech
- Legal Topics
- Trespass to Land, Ownership Rights, Permanent Injunction, Vacant Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Wainaina Gathigi
Plaintiff
Virginia Gathoni Kibaru
Defendant
George Muingai t/a Green Ring Investment Ltd
Defendant
Eliud Muchiri Gathingira
Defendant
Procedural Posture
Land and Property Suit / Judgment After Formal Proof; Default Judgment Against All Defendants
Legal Issues
- 1 Whether the plaintiff is the absolute and indefeasible owner of the suit land.
- 2 Whether the defendants trespassed onto the plaintiff's land and continue to do so.
- 3 Whether the plaintiff is entitled to exclusive possession, permanent injunction, and vacant possession of the suit land.
Ratio Decidendi
The court found that the plaintiff had proved he was the registered proprietor of the suit land, supported by documentary evidence. The defendants failed to appear or present any defence or legal basis for their occupation. The court held that the plaintiff's rights as proprietor are absolute and indefeasible, subject only to lawful encumbrances, none of which were established by the defendants. The trespass was deemed continuing, entitling the plaintiff to exclusive possession, a permanent injunction, and vacant possession. The court therefore granted the reliefs sought by the plaintiff, save for costs.
Court Disposition
Judgment for the plaintiff; declaration of exclusive possession, permanent injunction, order for vacant possession within 30 days, no order as to costs.
Orders
- Declaration that the plaintiff is entitled to exclusive and unimpeded right of possession and occupation of the suit land.
- Permanent injunction restraining the defendants from further building, interfering with, or dealing with the suit land.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT THIKA
ELC NO. 228 OF 2018
EDWARD WAINAINA GATHIGI..................................................PLAINTIFF
VS
VIRGINIA GATHONI KIBARU .........................................1ST DEFENDANT
GEORGE MUINGAI t/a
GREEN RING INVESTMENT LTD .....................................2ND DEFENDANT
ELIUD MUCHIRI GATHINGIRA......................................3RD DEFENDANT
JUDGMENT
1. The Plaintiff’s case is that he was at all material times the registered owner of THIKA/MUN/BLOCK11/818 (the suit land). That in 2013 The Defendants trespassed on to the suit land destroyed damaged and wasted the suit land occasioning him loss and deprived him of the use of the suit land. Loss and damage are particularized under para 11 of the plaint.
2. The Plaintiff has urged the Court for the following orders;
a. Declaration that the Plaintiff is entitled to exclusive and unimpeded right of possession and occupation of the suit land.
b. Permanent injunction restraining the Defendants either by themselves or through their servants and or agents or anyone claiming under the Defendants from further building or interfering with and or in any manner dealing with all that piece of land situate in Nairobi and known as THIKA/MU N/BLOCK11/818(suit land).
c. Vacant possession of the suit property.
d. Costs of the suit.
3. Despite substituted service, the 1st and 3rd Defendants failed to file any response to the suit. Judgement in default of appearance and defense was entered in favour of the Plaintiff.
4. The 2nd Defendant did not enter appearance nor filed a statement of defence.
5. The suit therefore proceeded on formal proof.
6. At the hearing the Plaintiff led evidence and stated that he was granted a lease by the Government of Kenya on the 31/7/97 and became registered as owner of the suit land on the 21/8/1997. He produced both the lease and the certificate of title. That the Defendants trespassed onto the suit land in 2013 and despite demand to vacate they have remained thereon adamantly.
7. The Plaintiff filed written submissions which I have read and considered. In the main the Plaintiff regurgitated the evidence and the Pleadings on record.
8. The issue before me is a simple one of trespass on land. In Black’s Law Dictionary 8th Edition, a continuing trespass is defined as: -
“A trespass in the nature of a permanent invasion on another’s rights, such as a sign that overhangs another’s property”.
9. In Clerk & Lindsel on Torts 16th Edition, paragraph 23 - 01, it is stated that: -
“Every continuance of a trespass is a fresh trespass of which a new cause of action arises from day to day as long as the trespass continues”.
10. Section 26 of the Land Registration Act No 3 of 2012 states that such person named as proprietor is the absolute and indefeasible owner but subject to encumbrances restrictions easements and conditions contained or endorsed in the certificate of title.
11. In the instant case the Plaintiff has persuaded the Court that he is the registered proprietor of the suit land and is entitled to quiet possession among other rights. The copy of the title was produced in evidence. The Court is persuaded that the trespass is in the nature of a continuing trespass that arises from day to day.
12. The law is that the proprietor’s rights are absolute, exclusive and indefeasible and are only subject to encumbrances restrictions easements and conditions permitted by law. The right to property is also part of our Constitution and has been affirmed under Article 40 as a fundamental principle to ensure that property is not just owned by people but their property rights are protected.
13. The Defendants have not established their claim against the suit parcel and their rights, if any, do not form part of encumbrances or restrictions that would limit the proprietor’s privileges. Their presence and right over the land and caution purportedly lodged have not been premised on any legal basis.
14. In the absence of any contrary evidence, the Court holds that the Plaintiff is the duly registered owner of the land.
15. In the upshot I enter judgement in favour of the Plaintiff as follows;
a. It is hereby declared the Plaintiff is entitled to exclusive and unimpeded right of possession and occupation of the suit land.
b. It is hereby ordered that a permanent injunction restraining the Defendants either by themselves or through their servants and or agents or anyone claiming under the Defendants from further building or interfering with and or in any manner dealing with all that piece of land known as THIKA/MUN/BLOCK11/818(suit land).
c. The Defendants be and hereby are ordered to hand over vacant possession of the suit land to the Plaintiff within 30 days from the date hereof and in default eviction to ensue.
d. I make no orders as to costs.
16. It is so ordered.
DATED, SIGNED & DELIVERED AT MURANG’A ONLINE THIS 26th DAY OF JANUARY 2021.
J G KEMEI
JUDGE
Delivered online in the presence of;
Okello for the Plaintiff
1st – 3rd Defendants: Absent
Court Assistant: Kuiyaki