[2019] KEELC 4837 (KLR)
The court found that the plaintiff had proved ownership of the suit land through documentary evidence and uncontroverted testimony. The defendant, despite being served, failed to file a defence or participate in the proceedings, leaving the plaintiff's case unchallenged. The court held that the defendant's entry...
Source-derived case information.
- Citation
- [2019] KEELC 4837 (KLR)
- Parties
- Plaintiff: Gabriel Muindi Simiyu; Defendant: Desterio Barasa Ondwasi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 91 of 2013
- Procedural Posture
- Land Dispute / Judgment
- Outcome
- Judgment for the plaintiff. Permanent injunction granted. Costs awarded to the plaintiff.
- Judges
- A Kaniaru
- Legal Topics
- Trespass to Land, Ownership Rights, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Muindi Simiyu
Plaintiff
Desterio Barasa Ondwasi
Defendant
Procedural Posture
Land Dispute / Judgment
Legal Issues
- 1 Whether the plaintiff is the lawful owner of L.R. No. BUKHAYO/LUPIDA/2491.
- 2 Whether the defendant trespassed onto the plaintiff's land and excavated stones without authority.
- 3 Whether the plaintiff is entitled to a permanent injunction restraining the defendant from interfering with the suit land.
Ratio Decidendi
The court found that the plaintiff had proved ownership of the suit land through documentary evidence and uncontroverted testimony. The defendant, despite being served, failed to file a defence or participate in the proceedings, leaving the plaintiff's case unchallenged. The court held that the defendant's entry onto the land and excavation of stones constituted trespass and unlawful interference with the plaintiff's proprietary rights. The plaintiff, as the registered owner, is entitled to protection from such acts, and the court granted a permanent injunction restraining the defendant from further interference. Costs were also awarded to the plaintiff.
Court Disposition
Judgment for the plaintiff. Permanent injunction granted. Costs awarded to the plaintiff.
Orders
- A permanent injunction restraining the defendant, his agents, servants or anyone acting under him from excavating stones, farming, planting, tilling, using and/or in any other way interfering with the plaintiff’s L.R. No. BUKHAYO/LUPIDA/2491.
- The plaintiff is awarded costs of the suit.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
IN BUSIA
ENVIRONMENT AND LAND COURT
ELCNO. 91 OF 2013
GABRIEL MUINDI SIMIYU..................................................PLAINTIFF
= VERSUS =
DESTERIO BARASA ONDWASI.......................................DEFENDANT
J U D G M E N T
1. The Plaintiff – GABRIEL MUINDI SIMIYU –filed this case here against the Defendant – DESTERIO BARASA ODWASI – on 7/11/2013 vide a plaint dated 5/7/2013. He pleaded and later testified that he is the registered owner of land parcel No. BUKHAYO/LUPIDA/2491 (“suit land” hereafter) which he acquired through purchase from the deceased father of PW2. The Defendant is said to have trespassed onto the land and engaged in the exercise of excavating stones. He is also said to have threatened to use the whole land.
2. The Plaintiff wants the Defendant injuncted. More specifically, he has prayed for the following orders:
(a) A permanent injunction restraining the Defendant either by himself, his agents, servants or anyone acting under him from excavating stones, farming, planting, tilling, using and/or in any other way interfering with the Plaintiff’s L.R. No. BUKHAYO/LUPIDA/2491.
(b) Costs of the suit.
(c) Any other relief deemed fit to grant.
3. It is clear that the Defendant was served and on 5/12/2013 he entered appearance. He however failed to follow that up with filing of defence. Infact, the Defendant did not participate in the case in any meaningful way after that.
4. The hearing of the case took place on 2/7/2015, with the Plaintiff testifying as PW1 while his witness – JACOB ETYANG EKASIBA – testified as PW2. The evidence of these two witnesses was generally in agreement. It became clear that the Plaintiff bought the land from PW2’s deceased’s father. The Defendant was said to own the neighbouring parcel of land but there is a road separating that land from the Plaintiff’s land. The Defendant has however crossed over into the Plaintiff’s land and started excavating stones. The Plaintiff feels aggrieved because his rights of ownership have been interfered with.
5. After hearing, the Plaintiff filed submissions on 21/5/2018. The submissions captured well the substance of pleadings and evidence. There was also articulation of the applicable law.
6. I have considered the pleadings, evidence, and submissions. The case is not controverted. It is clear the Plaintiff owns the suit land. In the court file, there are various documents showing the process of acquisition and eventual ownership of the land by the Plaintiff.
7. It is improper and illegal for the Defendant to enter the suit land to excavate stones. I agree with the Plaintiff that that is violation of ownership rights. It was incumbent upon the Defendant to explain why he is doing that or whether he is doing it at all. But the Defendant refused or failed to participate in the case.
8. As submitted by counsel for the Plaintiff, the Plaintiff, as registered owner, is vested with absolute proprietorship of the land together with all the rights and privileges that go with such ownership. And his rights cannot be defeated by or through unwarranted and/or illegal acts by unauthorised persons. Such rights can only be defeated through due process.
9. In the circumstances of this case, there is really nothing standing in the way of what the Plaintiff is seeking. And it is reasonably clear that if the Defendant is not injuncted, his activities on the suit land will obviously result in serious damage that will affect the land’s productivity. The Defendant is said to have threatened to continue his activities. There is therefore real likelihood of future infringement of the Plaintiff’s rights.
10. Without much ado, I make a finding that the Plaintiff has proved his case on a balance of probability. I therefore grant him injunctive relief as prayed for in prayer (a) in the plaint. The Plaintiff is also entitled to costs (prayer b). I therefore award him costs of the suit.
Dated, signed and delivered at Busia this 30th day of January, 2019.
A. K. KANIARU
JUDGE
In the Presence of:
Plaintiff: Absent
Defendant: Present
Counsel for Plaintiff: Absent
Counsel for Defendant: Absent
Court Assistant: Nelson Odame