[2018] KEELC 3708 (KLR)
The Plaintiff established ownership of land parcel L.R. MARACHI/BUJUMBA/2414 through documentary evidence, including a title deed and search certificate. The Defendant, despite being aware of the proceedings, failed to participate meaningfully or challenge the Plaintiff's evidence. The court found that the Defendant...
Source-derived case information.
- Citation
- [2018] KEELC 3708 (KLR)
- Parties
- Plaintiff: Isaac Ouma Nyabera; Defendant: County Government of Busia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 69 of 2017
- Procedural Posture
- Land Case / Judgment
- Outcome
- Plaintiff's claim allowed in full.
- Judges
- A Kaniaru
- Legal Topics
- Trespass, Land Ownership, Injunctions, Property Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Ouma Nyabera
Plaintiff
County Government of Busia
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the Defendant trespassed onto the Plaintiff's land parcel L.R. MARACHI/BUJUMBA/2414 without authority.
- 2 Whether the Plaintiff is entitled to a permanent injunction restraining the Defendant from encroaching, using, or developing the land.
- 3 Whether the Plaintiff is entitled to closure of the livestock market and costs.
Ratio Decidendi
The Plaintiff established ownership of land parcel L.R. MARACHI/BUJUMBA/2414 through documentary evidence, including a title deed and search certificate. The Defendant, despite being aware of the proceedings, failed to participate meaningfully or challenge the Plaintiff's evidence. The court found that the Defendant had unlawfully entered and used the Plaintiff's land without consent, violating the Plaintiff's property rights protected under the Land Registration Act, 2012. The Plaintiff's case was proved on a balance of probabilities, entitling him to the reliefs sought, including closure of the market, a permanent injunction, and costs. The court ordered that the Defendant be given 90...
Court Disposition
Plaintiff's claim allowed in full.
Orders
- The Defendant shall close down forthwith the open-air animal/livestock market at Bumala 'A' on L.R. MARACHI/BUJUMBA/2414, with 90 days notice from the Plaintiff.
- A permanent injunction restraining the Defendant, its agents, servants, or any other person acting on its behalf from encroaching, trespassing, using, or developing in any manner land parcel L.R. MARACHI/BUJUMBA/2414.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA IN BUSIA
LAND & ENVIRONMENTAL DIVISION
ELCNO. 69 OF 2017
ISAAC OUMA NYABERA......................................PLAINTIFF
VERSUS
COUNTY GOVERNMENT OF BUSIA..............DEFENDANT
J U D G E M E N T
1. By a plaint dated 20/3/2017 and filed in court on 28/3/2017, the Plaintiff – ISAAC OUMA NYABERA – pleaded, interalia, that the Defendant– COUNTY GOVERNMENT OF BUSIA – had trespassed onto a portion of his land parcel No. L.R. MARACHI/BUJUMBA/2144 and fenced it off. The Defendant has then gone ahead and started using the land as a livestock market, particularly on Saturdays. It was pleaded further that the Defendant, through agents, servants and/or workers has drilled a borehole on the site and erected water tanks and other structures on the land. All this was done without the Plaintiff’s authority and/or permission.
2. The Plaintiff asks for the following orders:
(a) That the Defendant close down forthwith the open-air animal/livestock market at Bumala “A” on L.R. MARACHI/BUJUMBA/2414.
(b) An order of permanent injunction restraining the Defendant, its agents, servants, or any other person acting on its behalf from encroaching/trespassing, using, developing in whatsoever manner land parcel L.R. MARACHI/BUJUMBA/2414.
(c) Costs.
3. The Plaintiff’s claim was denied vide a defence dated 18/4/2017 filed on the same date. In simple terms, the Defendant averred that it is a stranger to the Plaintiff’s claim and that the suit as filed is bad in law, and fatally defective. The Defendant asked that the case be dismissed with costs.
4. The defence did not comply with pre-trial requirements. For instance, there are no witness statement or documents filed. The court heard the matter on 10/10/2017. This happened after several hiccups from the Defendant – this is particularly manifest in the court record of 20/7/2017 and 10/10/2017 – who seemed intent on delaying the hearing. The Plaintiff testified as PW1. He reiterated that there was trespass onto his land and the Defendant was engaged in activities un-authorized by him. In the course of hearing the Plaintiff availed several exhibits to buttress his claim. There was the title deed (PEX No. 1) and a copy of search certificate (PEX No. 2) both of which vouch for his ownership of the land. There was a mutation form (PEX No. 3) showing that the Plaintiff’s land was derived from parcel No. MARACHI/BUJUMBA/41. It is clear that parcel No. 41 was subdivided into two portions which were given numbers 2414 and 2415 respectively. The Plaintiff got to own 2414 while his brother got to own 2415. There was also a demand letter to Defendant (PEX No. 4), the Defendants response to demand letter (PEX No. 5) and finally a written request to the Defendant to stop using the land (PEX No. 6).
5. The case proceeded without the Defendant. The Defendant’s counsel was aware of it but disappeared during hearing. After taking the Plaintiff’s testimony, the Plaintiff’s case was closed.
6. The Plaintiff filed his submissions on 23/11/2017. The submissions are actually a summation of the pleadings and evidence on record. There is also a reference to the applicable law – particularly sections 24, 25 and 26 of the Land Registration Act, 2012 – in the submissions. The Defendant did not file submissions despite intimation on 6/12/2017 that that would be done.
7. It seems to me that this is a case of blatant and unwarranted violation of a citizen’s property rights by an entity that should precisely seek to protect them. It is shown well that the Plaintiff owns the land. It was shown well that the Defendant has illegally encroached onto the land and is conducting activities there without the blessings of the Plaintiff. The law is clear. Property rights of a private citizen are well protected. Arbitrary violation of such rights is not acceptable. It would be wrong to allow the Defendant to continue being on the Plaintiff’s land without permission from the Plaintiff.
8. My finding is that the Plaintiff’s case is well proved on a balance of probabilities against the Defendant and I therefore grant the Plaintiff prayers (a), (b) and (c) in the plaint. Prayer (a) requires to be enforced in an orderly manner. Let the Plaintiff give the Defendant 90 days notice to close the market. If the Defendant does not comply, then the order should be enforced in accordance with the law.
Dated, signed and delivered at Busia this 11th day of April, 2018.
A. K. KANIARU
JUDGE
In the Presence of:
Plaintiff: ………………….........…………………..…………
Defendant: …………………..………………..………………
Counsel of Plaintiff…………………..……..……………..……
Counsel of Defendants……………………..……………..……