[2013] KEHC 5958 (KLR)
The court found that the plaintiff's evidence of ownership was unchallenged and supported by documentary proof. The defendant, having failed to appear or file a defence, did not rebut the plaintiff's claim. Under Section 27 of the Registered Land Act, the plaintiff's registration as proprietor conferred absolute...
Source-derived case information.
- Citation
- [2013] KEHC 5958 (KLR)
- Parties
- Plaintiff: Maurice Mugambi Ngoroi; Defendant: Paul Gichovi Nyaga
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 289 of 2013
- Procedural Posture
- Land and Environment Case / Formal Proof Judgment After Interlocutory Judgment Due to Non Appearance
- Outcome
- Judgment for the plaintiff.
- Legal Topics
- Trespass to Land, Injunctions, Eviction Orders, Ownership of Land, Uncontested Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maurice Mugambi Ngoroi
Plaintiff
Paul Gichovi Nyaga
Defendant
Procedural Posture
Land and Environment Case / Formal Proof Judgment After Interlocutory Judgment Due to Non Appearance
Legal Issues
- 1 Whether the plaintiff is the lawful owner of GATURI/NEMBURE/11666 and entitled to exclusive possession.
- 2 Whether the defendant trespassed on the plaintiff's land without any legal justification.
- 3 Whether the plaintiff is entitled to a permanent injunction, eviction order, and damages for trespass.
Ratio Decidendi
The court found that the plaintiff's evidence of ownership was unchallenged and supported by documentary proof. The defendant, having failed to appear or file a defence, did not rebut the plaintiff's claim. Under Section 27 of the Registered Land Act, the plaintiff's registration as proprietor conferred absolute ownership. The defendant's entry and construction on the land constituted trespass. The court held that the plaintiff was entitled to a permanent injunction restraining the defendant from further trespass, an eviction order, nominal damages for trespass, and costs. The absence of any defence or contrary evidence made the plaintiff's case succeed on a balance of probabilities.
Court Disposition
Judgment for the plaintiff.
Orders
- A permanent injunction restraining the defendant from trespassing, constructing on, or otherwise dealing with GATURI/NEMBURE/11666.
- An order of eviction against the defendant from GATURI/NEMBURE/11666.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
ELC CASE NO. 289 OF 2013
MAURICE MUGAMBI NGOROI ........................................................PLAINTIFF
VERSUS
PAUL GICHOVI NYAGA ................................................................DEFENDANT
JUDGMENT
The plaintiff filed this suit against the defendant on 15/2/2013 seeking the following remedies:
A permanent injunction restraining the defendant either by himself or through his servants and/or all claiming under him and agents from trespassing, constructing on or attempting to develop on GATURI/NEMBURE/11666 or in any other manner dealing whatsoever with the land.
An order of eviction from GATURI/NEMBURE/11666.
General damages for trespass
Costs of the suit and interest.
The suit was based on the facts that although the plaintiff is the registered proprietor of the parcel of land known as GATURI/NEMBURE/11666 (hereinafter referred to as the suit land), the defendant on or about the year 2012 and without any colour of right or justification whatsoever, illegally entered onto the said land and erected structures on it thus interfering with the plaintiff’s right of peaceful use and quiet enjoyment of the said land hence this suit.
The defendant having been served personally on 7/3/2013 did not enter appearance or file defence and on 4/4/2013, interlocutory judgment was entered against him. This matter thereafter came up before me for formal proof on 14/5/2013.
The plaintiff gave evidence in support of the claim and told the Court that he purchased the suit property on 5/11/2011 from Perpetua Munyi and Pius Ndwiga and he produced the sale agreement (Exhibit 1) as well as the title deed to show that the property is registered in his names (Exhibit 2). He added that when he went to take possession of the property, he found that the defendant had trespassed on it and put up structures. He therefore instructed his lawyer to write a demand notice (Exhibit 3) and thereafter filed this suit.
Plaintiff’s advocate filed submissions which I have considered together with the plaintiff’s oral and documentary evidence.
The suit property is registered in the plaintiff’s names and is under the Registered Land Act (now repealed) and under Section 27 of the said Act, such registration vests in the plaintiff “the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto”. There are no inhibitions or other encumbrances noted thereon and the plaintiff’s evidence as to ownership is not rebuted as the defendant did not file any defence. Therefore, on the basis of the plaintiff’s un-controverted evidence, I have no hesitation in finding that he has, on a balance of probabilities established that indeed he is the owner of the dispute property upon which the defendant has illegally trespassed without any colour of right.
On the evidence before me, un-challenged as it is, I am satisfied that the plaintiff is entitled to the remedies of permanent injunction restraining the defendant by himself or through his agents or servants from trespassing and/or constructing on the suit property. The plaintiff is also entitled to an order evicting the defendant from the suit property.
With regard to damages for trespass, the Court will make a nominal award of Ksh. 10,000/=. The plaintiff is also entitled to costs of this suit plus interest at Court rates.
Orders accordingly.
B.N. OLAO
JUDGE
10/6/2013
10/6/2013
Before B.N. OLAO – JUDGE
CC – Muriithi
Ms Muthike for Kagiri for Plaintiff present
No appearance for Defendant
COURT: Judgment delivered this 10th day of June, 2013.
Right of appeal explained.
B.N. OLAO
JUDGE
10/6/2013