[2018] KEELC 848 (KLR)
The court found that the plaintiff failed to provide evidence to controvert the report and testimony of the Land Adjudication and Settlement Officer, which confirmed the defendant's position that there was no boundary dispute between the parcels of land. The court held that the dispute had already been resolved by...
Source-derived case information.
- Citation
- [2018] KEELC 848 (KLR)
- Parties
- Plaintiff: Godfrey Wachira Mutwakara; Defendant: Miriam Waruguru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 293 of 2014
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- plaintiff's suit dismissed with costs to the defendant
- Judges
- L Waithaka
- Legal Topics
- Trespass, Boundary Dispute, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Godfrey Wachira Mutwakara
Plaintiff
Miriam Waruguru
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the defendant trespassed onto the plaintiff's parcel of land, L.R. No. Nyeri/Ngarengiro/610.
- 2 Whether the plaintiff is entitled to a permanent injunction restraining the defendant from interfering with the suit property.
- 3 Whether the plaintiff is entitled to general damages for trespass.
Ratio Decidendi
The court found that the plaintiff failed to provide evidence to controvert the report and testimony of the Land Adjudication and Settlement Officer, which confirmed the defendant's position that there was no boundary dispute between the parcels of land. The court held that the dispute had already been resolved by the District Land Registrar, and the plaintiff did not appeal that decision as required by law. Consequently, the plaintiff did not establish a case for trespass or entitlement to the orders sought. The suit was therefore dismissed with costs to the defendant.
Court Disposition
plaintiff's suit dismissed with costs to the defendant
Orders
- The plaintiff's claim is dismissed.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NYERI
ELC CASE NO. 293 OF 2014
(Formerly Nyeri HCC No. 63 of 2009)
GODFREY WACHIRA MUTWAKARA......PLAINTIFF
-VERSUS-
MIRIAM WARUGURU............................... DEFENDANT
JUDGMENT
1. By a plaint dated 27th August, 2008 and filed on 4th May, 2009 the plaintiff herein filed this suit seeking judgment against the defendant for a declaration that the defendant has trespassed intohis parcel of land known as L.R. No. Nyeri/ Ngarengiro/610 (hereinafter referred to as the suit property); a permanent injunction to restrain the defendant, her servants and/or agents from interfering or in any other way dealing with the suit property, general damages for trespass to his land, costs of the suit and interest thereof.
2. The plaintiff’s suit is premised on the ground that the defendant who owns the parcel of land known as Nyeri/Ngarengiro (Settlement Scheme) 574 measuring 2. 7 hectares or thereabout, has unlawfully trespassed into his property (the suit property herein), erected a fence therein, cutting off a very big piece of land therefrom thus denying him the use of the portion of land cut off.
3. Through her statement of defence filed on 29th June 2009, the defendant denied the allegations leveled against her and averred that the dispute between the plaintiff and her concerning theboundary of her parcel of land and that of the plaintiff was resolved by the District Land Registrar, Nyeri.
4. Terming the plaintiff’s suit misconceived, bad in law, scandalous and frivolous, the defendant argues that the plaintiff ought to have appealed the decision of the Land Registrar concerning the common boundaries of their parcels of land, which he did not do.
5. When the matter came up for hearing, parties adduced evidence reiterating their respective positions concerning the subject matter of this suit and at close of hearing, filed submissions, which I have read and considered.
6. From the pleadings filed in this matter and the submissions, the sole issue for determination is found to be whether the plaintiff has made up a case for being granted the orders sought.
7. On that issue, having read and considered the evidence adduced in this matter and in particular the report produced by the Land Adjudication and Settlement Officer confirming the defendant’s contention and testimony to the effect that there exists no boundary dispute between the parcels of land herein and there being no evidence offered by the plaintiff to controvert that evidence, I find and hold that the plaintiff has not made up a case for being granted the orders sought. Consequently, I dismiss his claim with costs to the defendant.
8. Orders accordingly.
Dated, signed and delivered in open court at Nyeri this 3rd day of October, 2018.
L N WAITHAKA
JUDGE
Coram:
Godfrey Wachira – plaintiff
N/A by the defendant
Court assistant - Esther