[2011] KEHC 3978 (KLR)
The court found that the plaintiff was the registered owner of the suit property, as evidenced by the grant and the physical planner's map. The defendant's parcel was distinct and separate from the suit property. In the absence of any defence or contrary evidence from the defendant, the plaintiff's claim was proved...
Source-derived case information.
- Citation
- [2011] KEHC 3978 (KLR)
- Parties
- Plaintiff: Jeanette Nina Ndungu; Defendant: Kenneth Njuguna Mbogori
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 193 of 2009
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaintiff's claim allowed. Permanent injunction granted. Declaration of ownership made. Order for removal of wall issued. Costs awarded to plaintiff.
- Judges
- SP Ouko
- Legal Topics
- Ownership Dispute, Trespass, Permanent Injunction, Removal of Structures
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeanette Nina Ndungu
Plaintiff
Kenneth Njuguna Mbogori
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff is the lawful owner of parcel L.R. 11098/62.
- 2 Whether the defendant has trespassed on the suit property and erected a wall unlawfully.
- 3 Whether the plaintiff is entitled to a permanent injunction and removal of the wall.
Ratio Decidendi
The court found that the plaintiff was the registered owner of the suit property, as evidenced by the grant and the physical planner's map. The defendant's parcel was distinct and separate from the suit property. In the absence of any defence or contrary evidence from the defendant, the plaintiff's claim was proved on a balance of probabilities. The defendant's actions in building a wall and denying access constituted trespass. The plaintiff was entitled to a declaration of ownership, a permanent injunction restraining the defendant from interfering with the property, and an order for removal of the wall.
Court Disposition
Plaintiff's claim allowed. Permanent injunction granted. Declaration of ownership made. Order for removal of wall issued. Costs awarded to plaintiff.
Orders
- A declaration is made that the plaintiff is the lawful owner of parcel L.R. 11098/62.
- The defendant is restrained by a permanent injunction from interfering in any way with the suit property.
Full Case Text
Judgment text and source record
15 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL CASE NO.193 OF 2009
JEANETTE NINA NDUNGU…………...….….…PLAINTIFF
VERSUS
KENNETH NJUGUNA MBOGORI…….…..RESPONDENT
JUDGMENT
The plaintiff brought this suit against the defendant praying that the latter be restrained by a permanent injunction from selling, transferring, building on or in anyway trespassing on parcel of land known as L.R. 11098/62 (the suit property). She is further seeking a declaration that the suit property belongs to her, an order directing the defendant to remove the fence he has erected upon the suit property, costs and interest. The matter proceeded exparte after the defendant failed to enter appearance, file a defence or participate in the haring despite service.
The plaintiff testified that the suit property was initially registered in the name of her husband, Joel Ndungu Jeremiah, who, in 1990 transferred it to her. In February, 2009, the plaintiff learnt that the defendant was carrying out construction of a wall around the suit property. Upon inquiring from the defendant, his interest in the suit property he became rude claiming the ownership of the suit property. He took the plaintiff to his home and showed her a document of title in his name in respect of parcel of land No.11098/57 which is depicted in the area map as distinct from the suit property. This notwithstanding, the defendant claimed his was the genuine title while the plaintiff’s was a forgery. He continued to put-up the wall, completed it, fixed the gate and locked it. Since February, 2009, the plaintiff has not had access to the suit property hence this suit.
The plaintiff called P.W.2, Stephen Kamau who confirmed that indeed the defendant was building a wall around the suit property. He accompanied the plaintiff to the defendant’s home and saw his title deed for parcel of land No.11098/57.
I have considered the evidence presented by the plaintiff. In particular, it is common ground that the suit property is registered in her name as reflected in the grant and the physical planner’s map. I am also persuaded that the defendant’s parcel, although in the same area as the suit property is distinct and separate. In the absence of any evidence to the contrary, I find the plaintiff’s claim against the defendant proved on a balance of probability and is accordingly allowed. It is declared, therefore, that the plaintiff is the lawful owner of the suit property hence is entitled to its unfettered use. The defendant having failed to prove his interest in the suit property has trespassed and built a wall around the suit property and is probably planning to develop it. He is restrained by an order of permanent injunction from interfering in anyway with the suit property. He is further ordered to remove the wall forthwith failing which the plaintiff is authorized at the defendant’s expense to remove it.
I award costs of this suit to the plaintiff.
Dated, Delivered and Signed at Nakuru this 15th day of February, 2011.
W OUKO
JUDGE