[2014] KEHC 2872 (KLR)
The court found that the plaintiffs had established ownership of the suit land and that the defendant had trespassed by erecting a homestead and cultivating crops on the land. The defendant, despite being served and entering appearance, failed to file a defence or contest the plaintiffs' claims. The evidence...
Source-derived case information.
- Citation
- [2014] KEHC 2872 (KLR)
- Parties
- Plaintiff: Gaspary M. Tsiyosi; Plaintiff: Mlala Mwarua; Plaintiff: Tsuma Kidangu; Defendant: Kutsuka Paru
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 197 of 2013
- Procedural Posture
- Land and Environment Case / Formal Proof After Default Judgment
- Outcome
- Permanent injunction granted against the defendant; no damages awarded; each party to bear own costs.
- Judges
- SN Mukunya
- Legal Topics
- Trespass to Land, Permanent Injunction, Eviction, Default Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gaspary M. Tsiyosi
Plaintiff
Mlala Mwarua
Plaintiff
Tsuma Kidangu
Plaintiff
Kutsuka Paru
Defendant
Procedural Posture
Land and Environment Case / Formal Proof After Default Judgment
Legal Issues
- 1 Whether the defendant trespassed on the plaintiffs' parcels of land in Ndavaya Group Ranch.
- 2 Whether the plaintiffs are entitled to a permanent injunction restraining the defendant from interfering with their use and occupation of the land.
- 3 Whether the plaintiffs are entitled to damages for trespass.
Ratio Decidendi
The court found that the plaintiffs had established ownership of the suit land and that the defendant had trespassed by erecting a homestead and cultivating crops on the land. The defendant, despite being served and entering appearance, failed to file a defence or contest the plaintiffs' claims. The evidence presented by the plaintiffs, including photographs, was uncontroverted. On the balance of probabilities, the court was satisfied that the plaintiffs were entitled to a permanent injunction restraining the defendant from further trespass or interference. However, as no evidence of damages was provided, no award for damages was made. Each party was ordered to bear their own costs.
Court Disposition
Permanent injunction granted against the defendant; no damages awarded; each party to bear own costs.
Orders
- A permanent injunction is granted restraining the defendant, his agents, and servants from trespassing, obstructing, occupying, or in any other manner interfering with the plaintiffs' use and occupation of their parcels in Ndavaya Group Ranch, Kwale Ndavaya/1.
- No damages are awarded as none were proved.
Full Case Text
Judgment text and source record
23 paragraphs
COPY
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC NO. 197 OF 2013
1. GASPARY M. TSIYOSI
2. MLALA MWARUA
3. TSUMA KIDANGU ...............................................................PLAINTIFFS
-VERSUS-
KUTSUKA PARU ...................................................................DEFENDANTS
JUDGEMENT
[1] The plaintiffs claim against the defendant is for an order of permanent injunction restraining the defendant by himself and his agents, servants from trespassing,obstructing, occupying or any other manner interfering with the plaintiffs use of and occupation of their parcels of land in Ndavaya Group Ranch (KWALE NDAVAYA/1) and his eviction therefrom, costs and interest of the suit. The defendant was served with the plaint and he entered appearance on 18th September, 2013. he filed no other pleadings. A request for judgment was made on 27th December, 2013 and the judgment was entered by the Deputy Registrar on 22nd January, 2014. The matter came for formal proof before me on 29th May, 2014.
[2] The plaintiff Gaspary M. Tsiyosi who had been authorized by the other two plaintiffs to plead, act and appear for them on 30th August, 2013, relied on his witness statements annexed to the plaint. In that statement he avered that he is the owner of land with the title Kwale Ndavaya/1 Group Ranch. He averred that he purchased the land from the defendants father. That sometime on 30th April, 2013 the defendants trespassed on the plaintiffs land and the two adjacent parcels belonging to 2nd and 3rd plaintiffs. He prayed that the defendant be ordered by the court to vacate from the said parcels of land and pay damages for trespass and costs of the suit.
The averments of the plaintiffs have not been controverted by the defendants who was served and even entered appearance. `
[3] The plaintiffs annexed photographs of the suit land showing the cultivated areas of the land with planted foodcrops and the homestead of the defendant. I am convinced on the balance of probabilities that the defendant has entered the plaintiffs land and has erected a homestead and is cultivating food crops therein. I am also satisfied that he was served, entered appearance and failed to file his defence as a result judgment was entered against him.
[4] I do grant a permanent injunction against the defendant by himself, agents and servants from trespassing, obstructing, occupying or in any other manner interfering with the plaintiffs in the use and occupation of their parcels in Ndavaya Group Ranch, in Kwale Davaya/1 as prayed in the plaint.
[5] There was no proof of any damages before me and I will not order any damages. Each party shall bear their own costs.
Dated and delivered at Mombasa in open court this 18th day of September, 2014.
S. MUKUNYA
JUDGE
18. 9.2014
In the presence of:
The 3rd defendant.