[2018] KEELC 548 (KLR)
The court found that the plaintiff had produced uncontroverted evidence of ownership of the suit land, and the defendant had trespassed by erecting structures and cultivating crops without consent. The defendant failed to enter appearance or file a defence, and the plaintiff's evidence was unchallenged. The court...
Source-derived case information.
- Citation
- [2018] KEELC 548 (KLR)
- Parties
- Plaintiff: Kangogo Chebii; Defendant: Jackson Kibet Chesang
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 389 of 2017
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Plaintiff's claim allowed in full.
- Judges
- MAO Odeny
- Legal Topics
- Trespass to Land, Eviction Orders, Permanent Injunction, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kangogo Chebii
Plaintiff
Jackson Kibet Chesang
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the defendant unlawfully trespassed onto the plaintiff's registered land parcel BARINGO/KAPKIAMO/1777.
- 2 Whether the plaintiff is entitled to an eviction order and permanent injunction against the defendant.
- 3 Whether the plaintiff is entitled to general damages for trespass.
Ratio Decidendi
The court found that the plaintiff had produced uncontroverted evidence of ownership of the suit land, and the defendant had trespassed by erecting structures and cultivating crops without consent. The defendant failed to enter appearance or file a defence, and the plaintiff's evidence was unchallenged. The court held that the plaintiff had proved his case on a balance of probabilities and was entitled to eviction, a permanent injunction, and general damages for trespass. The production of a title deed was sufficient to establish ownership, and trespass was established by the defendant's unlawful occupation and use of the land.
Court Disposition
Plaintiff's claim allowed in full.
Orders
- The defendant to give the plaintiff vacant possession of ½ an acre of parcel No. BARINGO/KAPKIAMO/1777 within 30 days, failing which an eviction order shall issue.
- A permanent injunction restraining the defendant, his servants, workmen, and agents from entering, trespassing, cultivating, erecting structures, or interfering with the plaintiff's enjoyment of BARINGO/KAPKIAMO/1777.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT ELDORET
ELC SUIT NO. 389 OF 2017
KANGOGO CHEBII………………………………………PLAINTIFF
VERSUS
JACKSON KIBET CHESANG………………………DEFENDANTS
JUDGMENT
By a plaint dated 6th December 2017 the plaintiff herein sued the defendant seeking for the following orders:
a) An order of eviction and further orders compelling the defendant to hand over vacant possession of ½ an acre or approximate acreage of the land described as BARINGO/KAPKIAMO/1777 measuring approximately 1. 11HA
b) A permanent injunction restraining the defendant, his servants, workmen and agents from entering, trespassing, cultivating on and or erecting or causing to be erected thereon any structures and or ploughing or in any way interfering with the plaintiff’s enjoyment of that parcel of land known as BARINGO/KAPKIAMO/1777 measuring approximately 1. 11HA
c) General damages for trespass.
d) Costs of the suit and interest.
The defendant was served with summons to enter appearance but neither entered appearance nor filed a defence within the stipulated period therefore the matter proceeded by way of formal proof.
The plaintiff adopted his statement as evidence before the court whereby he stated that the defendant trespassed on to his parcel of land and built a temporary structure and planted crops without his permission . He stated that he reported the matter to the chief and the Police and the defendant was arrested and later released. The chief advised them to go to court as he does not have powers to hand le a matter where the land is registered.
The plaintiff produced a copy of a title deed, and official search and a demand letter to the defendant. He urged the court to grant orders as prayed in the plaint.
Analysis and determination
The plaintiff gave evidence and produced a copy of the title to the suit land registered in his name. The same has not been controverted. The production of a title in the plaintiff’s name is prima facie evidence that he is the rightful owner of the suit land as its acquisition has not been questioned With no any other evidence to the contrary the court must assume that it is authentic.
The plaintiff’s evidence was unchallenged by any other evidence to the contrary. I find that the plaintiff has proved his case on a balance of probabilities against the defendant.
On the issue of general damages, trespass is a tort which is actionable per se. Damage to property was proved by the plaintiff from the agricultural activities and the structures erected thereon by the defendant. The unlawful entry and use of the land is enough proof of injury to the plaintiff by the defendant. The plaintiff also stated that the defendant has planted some crops and built some dwelling house.
The plaintiff has been prevented from user of the ½ acres portion of land. I therefore award the plaintiff Kshs 100,000/ as general damages for trespassand further make the following orders:
a) The defendant to give the plaintiff vacant possession on the of ½ an acre of parcel No. BARINGO/KAPKIAMO/1777 measuring approximately 1. 11HA within 30 days failure of which an eviction order to issue.
b) A permanent injunction is hereby issued restraining the defendant, his servants, workmen and agents from entering, trespassing, cultivating on and or erecting or causing to be erected thereon any structures and or ploughing or in any way interfering with the plaintiff’s enjoyment of that parcel of land known as BARINGO/KAPKIAMO/1777 measuring approximately 1. 11HA
c) General damages for trespass for Kshs 100,000/
d) Costs of the suit and interest.
DATED andDELIVEREDatELDORETthis17TH DAYof DECEMBER, 2018.
M.A ODENY
JUDGE
Judgment read in open court in the presence of Miss Wamalwa holding brief for Mr. Mwetich for Plaintiff and in the absence of the defendant.
Mr. Koech: Court Assistant.