[2012] KEHC 5441 (KLR)

[2012] KEHC 5441 (KLR)

The Court of Appeal held that lawful occupation of land, even in the absence of registered title, is sufficient to confer the right to sue for trespass and to seek eviction of an intruder. The respondent, not being the owner or having any right to possession, was a trespasser. The High Court erred in holding that only a registered owner could sue for trespass. The appellant's possession, recognized by both lower courts, entitled him to protection against interference by third parties. The appeal was allowed, reinstating the trial court's order for eviction of the respondent and awarding costs to the appellant.

Citation
[2012] KEHC 5441 (KLR)
Parties
Appellant: Samuel Mwangi; Respondent: Jeremiah M’Itobu
Court
High Court
Court Station
High Court at Nyeri
Jurisdiction
Kenya
Judgment Date
5 July 2012
Case Number
Civil Appeal 264 of 2007
Procedural Posture
Civil Appeal / Second Appeal From High Court Judgment
Outcome
Appeal allowed; High Court judgment set aside; trial court's order for eviction reinstated; costs to appellant in both courts.
Legal Topics
Trespass to Land, Possession Rights, Customary Land Adjudication
Source Language
English
Land and Property Tort Law Trespass to Land Possession Rights Customary Land Adjudication

Case Brief

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Parties

Samuel Mwangi

Appellant

Jeremiah M’Itobu

Respondent

Procedural Posture

Civil Appeal / Second Appeal From High Court Judgment

Legal Issues

  1. 1 Can an occupier of land, who is not yet the registered owner, sue an intruder for trespass?
  2. 2 Does customary law preclude a claim for trespass where the land is under adjudication and the plaintiff is in occupation?
  3. 3 Does lawful occupation confer the right to evict a trespasser prior to registration of title?

Ratio Decidendi

The Court of Appeal held that lawful occupation of land, even in the absence of registered title, is sufficient to confer the right to sue for trespass and to seek eviction of an intruder. The respondent, not being the owner or having any right to possession, was a trespasser. The High Court erred in holding that only a registered owner could sue for trespass. The appellant's possession, recognized by both lower courts, entitled him to protection against interference by third parties. The appeal was allowed, reinstating the trial court's order for eviction of the respondent and awarding costs to the appellant.

Court Disposition

Appeal allowed; High Court judgment set aside; trial court's order for eviction reinstated; costs to appellant in both courts.

Orders

  • The appeal is allowed.
  • The judgment and decree of the High Court are set aside.