[2013] KEELC 57 (KLR)
The court found that the plaintiff, as administrator of the estate, had established ownership of Plot No. 194 Section V M N through production of the title and letters of administration. The evidence, including a surveyor's report and witness testimony, proved that the defendant had encroached on the plaintiff's...
Source-derived case information.
- Citation
- [2013] KEELC 57 (KLR)
- Parties
- Plaintiff: Kombo Hassan Kombo (Suing as the Administrator of the Estate of Mwishahali Kombo Mwinyihaji); Defendant: Omar Said Abdalla
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 560 of 2011
- Procedural Posture
- Civil Case / Judgment After Formal Proof; Defendant Failed to Enter Appearance
- Outcome
- Plaintiff's claim allowed; permanent and mandatory injunctions granted; no damages for trespass; costs and interest awarded to plaintiff.
- Judges
- SN Mukunya
- Legal Topics
- Trespass to Land, Permanent Injunction, Mandatory Injunction, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kombo Hassan Kombo (Suing as the Administrator of the Estate of Mwishahali Kombo Mwinyihaji)
Plaintiff
Omar Said Abdalla
Defendant
Procedural Posture
Civil Case / Judgment After Formal Proof; Defendant Failed to Enter Appearance
Legal Issues
- 1 Whether the defendant unlawfully encroached on the plaintiff's land, Plot No. 194 Section V M N.
- 2 Whether the plaintiff is entitled to a permanent and mandatory injunction against the defendant.
- 3 Whether the plaintiff is entitled to damages for trespass.
Ratio Decidendi
The court found that the plaintiff, as administrator of the estate, had established ownership of Plot No. 194 Section V M N through production of the title and letters of administration. The evidence, including a surveyor's report and witness testimony, proved that the defendant had encroached on the plaintiff's land and erected structures thereon. The defendant, having been duly served, failed to enter appearance or contest the claim, leaving the plaintiff's evidence uncontroverted. On a balance of probabilities, the court was satisfied that the plaintiff had proved his case and was entitled to a permanent injunction restraining the defendant from remaining on the property, and a...
Court Disposition
Plaintiff's claim allowed; permanent and mandatory injunctions granted; no damages for trespass; costs and interest awarded to plaintiff.
Orders
- A permanent injunction is issued restraining the defendant from entering into and remaining on the plaintiff's property known as Plot No. 194 Section V M N.
- A mandatory injunction is issued compelling the defendant to demolish his structures erected on the plaintiff's property known as Plot No. 194 Section V M N, and in default, the plaintiff may undertake the demolition at the defendant's cost and expense.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE LAND AND ENVIRONMENT COURT
AT MOMBASA
CIVIL CASE NO. 560 OF 2011
KOMBO HASSAN KOMBO (Suing as the Administrator
of the Estate of MWISHAHALI KOMBO MWINYIHAJI ............................PLAINTIFF
- V E R S U S -
OMAR SAID ABDALLA ......................................................................... DEFENDANTS
JUDGEMENT
[1] The plaintiff brought this suit against the defendant claiming that the defendant has encroached on the plaintiff's plot no. 194 Section V M N He argues that the defendant has remained on the suit property as a trespasser and has continued to maintain his illegal structures erected thereon despite evidence of ownership presented to him by the plaintiff and the Government Surveyor thereby denying the plaintiff quiet possession use and enjoyment of the suit property.
[2] On 21st October 2011 the defendant was served with summons to enter appearance, plaint, verifying affidavit and a list of the plaintiffs' witness. He received the documents and declined to sign for the same. The Plaintiff requested for judgment on 1st December 2011. Judgment was entered on 19th January 2012 for failure to enter appearance. This case came before me for formal proof on 24th June 2013. The plaintiff said that he is the administrator of the estate of Kombo Mwinyi Haji who owned a piece of land known as Plot 194/V/MN. He produced a title of the same. He stated that the defendant has encroached on the said plot. That he has built on a portion of the same. That the plaintiff tried to sort out the issue through the Chief of the area to no avail. Further that he called a Surveyor who came and took measurements and said the defendant has encroached on the plaintiffs land. Even then the defendant refused to move and vacate out of the said land.
The plaintiff produced a grant of the letters of administration, the death certificate, a copy of the title, a demand notice and a letter from the Surveyor to prove his claim.
[2] He called Mr. Wallid Abssa Omar as his witness. The witness said that he works with the Survey department. He said that he surveyed Plot 63 Jomvu Kuu 555. The Scheme boarders plot no. 194. He said that he found Plot No. 104 had a house encroaching by 47. 67 Square meters encroaching plot no. 194. He prepared the sketch. He said that he informed Omar Said Abdalla the plaintiff herein of the report.
That Omar Saidi Abdalla is the plaintiff herein who is the owner of number 3 in Jomvu Kuu Scheme.
[3] The defendant herein though served did not enter appearance or defence. The evidence of the plaintiff is not controverted in any way. I am on a balance of probabilities convinced that the plaintiff has proved his case.
I order that,
(a) a permanent injunction do issue to restrain the defendant from entering into and remaining on and upon the plaintiffs property known as plot no. 194 Section VM.
(b) That a mandatory injunction compelling the defendant to demolish his structures erected and stand in on and upon the plaintiffs property known as Plot No. 194 Section VMN and in default the plaintiff to undertake the same at the cost and expense of the defendant.
(c) No damages for trespass were proved before me and none will be awarded.
(d) The plaintiff shall have costs of the suit and interest from filing of the suit.
Dated and delivered in open Court at Mombasa this 18th day of
October, 2013.
S.N. MUKUNYA
JUDGE
18. 10. 2013
In the presence of:
Khatib Advocate for the plaintiff
No appearance for the defendant