[2016] KEELC 461 (KLR)
The court found that the Plaintiffs had established, on a balance of probabilities, that they are the rightful owners of the disputed parcel of land, having inherited it from their father. The Plaintiffs' claim was supported by documentary evidence, including a letter from the Chief and minutes of a local...
Source-derived case information.
- Citation
- [2016] KEELC 461 (KLR)
- Parties
- Plaintiff: Hare Kitsao; Plaintiff: Kazungu Kitsao; Defendant: Charo Baya; Defendant: Katana Baya; Defendant: Kahindi Baya; Defendant: Kahindi Kenga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 42 of 2015
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaintiffs' suit allowed; permanent injunction granted against Defendants.
- Judges
- OA Angote
- Legal Topics
- Land Ownership, Ancestral Land, Trespass, Permanent Injunction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hare Kitsao
Plaintiff
Kazungu Kitsao
Plaintiff
Charo Baya
Defendant
Katana Baya
Defendant
Kahindi Baya
Defendant
Kahindi Kenga
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the Plaintiffs are the rightful owners of the disputed parcel of land.
- 2 Whether the Defendants have unlawfully encroached and trespassed on the Plaintiffs' land.
- 3 Whether the Plaintiffs are entitled to a permanent injunction restraining the Defendants from trespassing.
Ratio Decidendi
The court found that the Plaintiffs had established, on a balance of probabilities, that they are the rightful owners of the disputed parcel of land, having inherited it from their father. The Plaintiffs' claim was supported by documentary evidence, including a letter from the Chief and minutes of a local arbitration, both of which confirmed their ownership and the Defendants' encroachment. The Defendants, despite being served, failed to enter appearance or file a defence, and thus did not challenge the Plaintiffs' evidence. The court held that in the absence of any defence or contrary evidence, and given the corroborative administrative findings, the Plaintiffs were entitled to the...
Court Disposition
Plaintiffs' suit allowed; permanent injunction granted against Defendants.
Orders
- A permanent injunction is issued restraining the Defendants from trespassing on the Plaintiffs' land.
- The Plaint dated 17th March, 2015 is allowed in terms of prayer (a) and (b).
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO. 42 OF 2015
1. HARE KITSAO
2. KAZUNGU KITSAO.................................................PLAINTIFFS
=VERSUS=
1. CHARO BAYA
2. KATANA BAYA
3. KAHINDI BAYA
4. KAHINDI KENGA.................................................DEFENDANTS
J U D G M E N T
1. In their Plaint, the Plaintiffs have averred that they are the rightful owners of a parcel of land situated at Bamba within Kilifi County; that the said land is their ancestral land and that the Defendants have encroached on the land.
2. According to the Plaintiffs, the issue of the encroachment was reported to the local administration officers who decided the dispute in their favour.
3. The Plaintiffs are seeking for an order of permanent injunction restraining the Defendants from trespassing on the land.
4. Although the Defendants were served with the Summons, they neither entered appearance nor filed a Defence.
5. The two Plaintiffs were in court and informed the court that the Defendants have refused to vacate their ancestral land.
6. The Plaintiffs informed the court that the land belonged to their father and that they were not related to the Defendants.
7. From the letter from the Chief and the Minutes of 27th March, 2012, the Chief of the area arbitrated over the disputed land and ruled in favour of the Plaintiffs.
8. According to the letter dated 24th February, 2015 by the Deputy County Commissioner of Ganze sub county, the dispute between the Plaintiffs and the Defendants has been outstanding since 1980s.
9. Considering that the Defendants were served but declined to file a Defence to controvert the Plaintiffs' claim, I find and hold that the Plaintiffs have proved their case on a balance of probabilities.
10. In the circumstances, I allow the Plaint dated 17th March, 2015 in terms of prayer (a) and (b).
Dated, signed and delivered in Malindi this 7th day ofOctober, 2016.
O. A. Angote
Judge