[2017] KEELC 598 (KLR)
The Plaintiff proved on a balance of probabilities that she is the registered proprietor of the suit property, L.R. No. 209/10912, as evidenced by the original grant. The Defendants, having failed to enter appearance or file a defence, did not rebut the Plaintiff's evidence. The court found that the Defendants...
Source-derived case information.
- Citation
- [2017] KEELC 598 (KLR)
- Parties
- Plaintiff: Khadija Kuria; Defendant: Patrick Wambua Ndambuki; Defendant: Liban Guyo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 28 of 2016
- Procedural Posture
- Land and Property Suit / Judgment After Formal Proof; Default of Appearance by Defendants
- Outcome
- Judgment for the Plaintiff as prayed in the Plaint.
- Judges
- AK Bor
- Legal Topics
- Trespass to Land, Ownership Disputes, Injunctive Relief
- 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
Khadija Kuria
Plaintiff
Patrick Wambua Ndambuki
Defendant
Liban Guyo
Defendant
Procedural Posture
Land and Property Suit / Judgment After Formal Proof; Default of Appearance by Defendants
Legal Issues
- 1 Whether the Plaintiff is the registered owner of L.R. No. 209/10912.
- 2 Whether the Defendants trespassed on the Plaintiff's land.
- 3 Whether the Plaintiff is entitled to a permanent injunction and damages for trespass.
Ratio Decidendi
The Plaintiff proved on a balance of probabilities that she is the registered proprietor of the suit property, L.R. No. 209/10912, as evidenced by the original grant. The Defendants, having failed to enter appearance or file a defence, did not rebut the Plaintiff's evidence. The court found that the Defendants unlawfully entered and erected structures on the Plaintiff's land, constituting trespass. Under Sections 24 and 26 of the Land Registration Act, the Plaintiff's title is absolute and indefeasible, entitling her to protection and remedies for trespass. The court awarded general damages for trespass, a permanent injunction restraining the Defendants from further interference, and...
Court Disposition
Judgment for the Plaintiff as prayed in the Plaint.
Orders
- A permanent injunction restraining the Defendants from trespassing or interfering with L.R. No. 209/10912.
- The Defendants to vacate and remove any structures from the suit property.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC. CASE NO. 28 OF 2016
KHADIJA KURIA.....................................................PLAINTIFF
VERSUS
PATRICK WAMBUA NDAMBUKI...............1ST DEFENDANT
LIBAN GUYO...............................................2ND DEFENDANT
JUDGEMENT
1. The Plaintiff sued the Defendants on 19/1/2016 seeking a permanent injunction to restrain them from trespassing or interfering with her parcel of land known as L.R. No. 209/10912 situated within Nairobi.
2. The Plaintiff is the registered owner vide Grant Number I.R. 10301 of L.R. Number 209/10912 (“the Suit Property”).
3. She claims that the Defendants have trespassed on her land and interfered with her enjoyment and quiet possession of the Suit Property. She seeks an order of eviction against the Defendants or their agents.
4. Summons to enter appearance, the plaint together with the application for injunction were served on the Defendants but they did not enter appearance or file their defences.
5. The court file went missing for some time and was reconstructed upon the Plaintiff’s application.
6. The Plaintiff requested for judgement against the Defendants in default of appearance and was directed to set down the case for formal proof.
7. The hearing proceeded on 17/7/2017. The Plaintiff attended court and gave evidence. She produced the original grant that shows she was registered as the proprietor of the Suit Property on 18/09/2012. She urged the court to issue a permanent injunction against the Defendants who have trespassed on her land by erecting structures on it causing her to suffer loss and damage. She sought the reliefs prayed for in the plaint.
8. The court has considered the matter and looked at the submissions filed by the Plaintiff’s advocate.
9. The issues for determination are whether the Plaintiff has proved that she is the owner of the Suit Property and whether she is entitled to the reliefs she seeks.
10. The Plaintiff who holds a title over the disputed land has proved on a balance of probabilities that she is the registered proprietor of the Suit Property and is therefore entitled to the protection afforded by law. The certificate of title she holds over the Suit Property is prima facie evidence that she is the absolute and indefeasible owner under Section 26 of the Land Registration Act.
11. The registration of the Plaintiff as the proprietor of the Suit Property vests in her the absolute ownership of the land together with all rights and privileges belonging thereto pursuant to Section 24 of the Land Registration Act.
12. The Defendants have unlawfully entered onto the Suit Property and erected structures on it. The court finds that the Defendants have trespassed on the Plaintiff’s land. Once trespass to land is established, it is actionable per se.
13. The other issue the court has to determine is the quantum of damages to award for trespass. The Plaintiff’s counsel submitted that the sum of Kshs. 1,500,000/= would suffice against the Defendants as general damages for the trespass on the Suit Property.
14. He relied on the decisions in Titus Gatitu Njau v Municipal Council of Eldoret [2015] eKLR and Paul Audi Ochuodho v Josiah Ombura Orwa [2014] eKLR where the court awarded general damages of Kshs. 500,000/= for trespass. In those cases the plaintiffs had laid a basis for the award of general damages and mesne profits and the court took into consideration the circumstances of the cases. In the latter case there was evidence of the expected maize yield that the Plaintiff would have sold were it not for the defendant’s trespass on its land. In the former case a commercial building had been demolished by the trespasser.
15. The Plaintiff has proved on a balance of probabilities that she is the owner of the Suit Property. The court enters judgement for the Plaintiff against the Defendant as prayed in the Plaint. The Plaintiff is awarded Kshs. 180,000/= which the court deems to be reasonable as general damages. The Plaintiff is also awarded the costs of this suit.
Dated and delivered at Nairobi this 13th day of December 2017.
K. BOR
JUDGE
In the presence of: -
Ms. Wanyama for the Plaintiff
No appearance for the Defendants
Mr. V. Owuor- Court Assistant