[2015] KEHC 6168 (KLR)
The court found that the plaintiff, as legal representative of the registered owner, had established ownership of the disputed land. The evidence, including title documents, searches, and photographs, demonstrated that the defendant had encroached onto the plaintiff's land by constructing a dam and fence, thereby...
Source-derived case information.
- Citation
- [2015] KEHC 6168 (KLR)
- Parties
- Plaintiff: Joseph Muchiri Ngatia; Defendant: Sigma Feeds Limited
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 201 of 2009
- Procedural Posture
- Land and Environment Case / Judgment
- Outcome
- judgment for the plaintiff
- Judges
- CM Kariuki
- Legal Topics
- Trespass to Land, Land Boundaries, Mandatory Injunctions, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Muchiri Ngatia
Plaintiff
Sigma Feeds Limited
Defendant
Procedural Posture
Land and Environment Case / Judgment
Legal Issues
- 1 Whether the defendant encroached on the plaintiff's land by constructing a dam and fence, thereby blocking access to the river.
- 2 Whether the plaintiff is entitled to mandatory injunctions for removal of the fence and dam materials.
- 3 Whether the plaintiff is entitled to general damages for trespass.
Ratio Decidendi
The court found that the plaintiff, as legal representative of the registered owner, had established ownership of the disputed land. The evidence, including title documents, searches, and photographs, demonstrated that the defendant had encroached onto the plaintiff's land by constructing a dam and fence, thereby blocking access to the river. The defendant's failure to attend court or present evidence meant the plaintiff's case was uncontroverted. The court held that the plaintiff had proved his case on a balance of probabilities and was entitled to the reliefs sought, including mandatory injunctions for removal of the fence and dam materials, and costs of the suit.
Court Disposition
judgment for the plaintiff
Orders
- The County Surveyor Kajiado to indicate the beacons and boundary separating Plaintiff’s KJD/Kitengela/2334 and the defendant's parcels 3855, 3856, 3858, 3859, 3860, 3861, and 3862.
- The defendant to remove fence and any materials from the plaintiff’s land within 30 days of boundary demarcation; failing which, the plaintiff may remove them and recover expenses from the defendant.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
ELC CASE NO.201 OF 2009
JOSEPH MUCHIRI NGATIA....................................PLAINTIFF
VERSUS
SIGMA FEEDS LIMITED....................................DEFENDANT
J U D G M E N T
1. The Plaintiff claim is set out in amended Plaint dated 10. 9.08 as follows-
a. A mandatory injunction requiring the defendant to forthwith remove the fence blocking the Plaintiff’s access to the river within such time as the court will direct and in default the plaintiff be at liberty to remove the fence.
b. A mandatory injunction requiring the defendant to forthwith remove all erections, construction or any other materials used to dam the river within such time as the court will direct and in default the plaintiff be at liberty to do so.
c. General damages for trespass.
d. Any further and other relief that this Honourable court may be pleased to grant.
e. Costs of the suit.
The Defendant has also filed amended defence dated 30. 9.2008 denying the same claim.
2. The matter came up for hearing on 22. 10. 2014 but the Defendant never attended court despite service of his advocate on 13. 10. 2014 vide hearing notice dated 9. 10. 2014. The Plaintiff filed affidavit of service sworn on 15. 10. 2014 and thus the court allowed Plaintiff to proceed with the hearing as the Defendant and the advocate were absent. The Plaintiff testified that he was the legal representative of Mary Wambui Muchiri deceased who was the registered owner of KJD/Kitengela/1953 which borders Defendants parcels No.KJD/Kitengela/3855, 3856, 3858, 3859, 3860, 3861 and 3862 being sub-divisions of the original land parcel No. KJD/Kitengela/1942. The Plaintiff stated that the border between Plaintiffs and Defendants properties above is the river between them.
3. It is the Plaintiff’s evidence that the border of the two parties properties is at the centre of the river between them. The plaintiff produced exhibits 1. Letters of Administrtion, 2. Copy of title of KJD/Kitengela/1953, 3. Searches of the named plots owned by the Defendant. The Plaintiff testified that the Defendant encroached the Plaintiff’s land enclosing the entire river and denying the Plaintiff the access and user of the same river. The encroachment extended to the Plaintiff’s land thus trespassing in his land. He produced exhibit 4 showing photographs of the construction of a dam. The Plaintiff therefore seeks the reliefs sought in the Plaint.
4. The Plaintiff called one witness PW.2 Daniel Ndungu Kago. He confirms that the dam constructed by the defendant has been extended to the Plaintiff’s land. He testified that the dam was blocking the river and encroaches Plaintiff’s land. He narrated that the 2 sets of land had been sub-divided by the beacons fixed in the river. The defendant did not appear to give the fashion of his case and thus the court is going to rule on the Plaintiff’s claim exparte.
5. The Plaintiff deceased wife was and is the registered owner of LR.No.2354 which under Section 26 of Land Registration Act is prima facie evidence of the ownership. The Plaintiff’s testimony as corroborated by that of the PW.2 plus the tendered pictures discloseS a case of encroachment into the Plaintiff’s land. In absence of the evidence to the contrary, the court is inclined to hold that the Plaintiff has proved his case on balance of probability as required by the law.
6. The court therefore makes the following orders:-
1. The County Surveyor Kajiado to indicate the beacons and thus boundary separating Plaintiff’s KJD/Kitengela/2334on one side and 3855, 3856, 3858, 3859, 3860, 3861 and 3862 on the other side.
2. The Defendant to remove fence and any of his materials from the Plaintiff’s Land once beacons and boundary are indicated by the Kajiado County Surveyor within 30 days. Failing to remove as above, the Plaintiff to remove the same and recover expenses from the Defendants.
3. Costs to the Plaintiff.
4. There be liberty to apply.
5. Mention in 45 days’ time to confirm compliance.
Datedand Delivered at Machakos this 6th day of February, 2015.
CHARLES KARIUKI
JUDGE