[2013] KEHC 5668 (KLR)
The court found that the plaintiff had formally proved his case by producing the original title deed for land parcel No. NYAKI/KITHOKA/1697 and demonstrating that the defendants had encroached upon his land following the seasonal change in the river's course. The absence of a defence or contrary evidence from the...
Source-derived case information.
- Citation
- [2013] KEHC 5668 (KLR)
- Parties
- Plaintiff: M'IKUNYUA MWONGERA; Defendant: NJERI WA CHEGE; Defendant: JOHN KIMANI CHEGE; Defendant: RICHARD KAMAU CHEGE; Defendant: WANJIRU CHEGE
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 35 of 2012
- Procedural Posture
- Land and Environment Case / Formal Proof Judgment
- Outcome
- Judgment for the plaintiff.
- Judges
- FM Njoroge
- Legal Topics
- Land Boundary Disputes, Injunctions, Land Registration, Encroachment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M'IKUNYUA MWONGERA
Plaintiff
NJERI WA CHEGE
Defendant
JOHN KIMANI CHEGE
Defendant
RICHARD KAMAU CHEGE
Defendant
WANJIRU CHEGE
Defendant
Procedural Posture
Land and Environment Case / Formal Proof Judgment
Legal Issues
- 1 Whether the defendants unlawfully encroached upon the plaintiff's land parcel No. NYAKI/KITHOKA/1697.
- 2 Whether the plaintiff is entitled to a permanent injunction restraining the defendants from interfering with his land.
- 3 Whether the Land Registrar should be ordered to fix the beacons between the disputed parcels.
Ratio Decidendi
The court found that the plaintiff had formally proved his case by producing the original title deed for land parcel No. NYAKI/KITHOKA/1697 and demonstrating that the defendants had encroached upon his land following the seasonal change in the river's course. The absence of a defence or contrary evidence from the defendants reinforced the plaintiff's claim. The court held that the plaintiff, as the registered proprietor, was entitled to protection from interference and encroachment. Accordingly, the court granted a permanent injunction restraining the defendants from entering or interfering with the plaintiff's land and ordered the Land Registrar to visit the disputed parcels and fix the...
Court Disposition
Judgment for the plaintiff.
Orders
- A permanent injunction restraining the defendants, their agents, servants and/or employees from entering, cutting down the plaintiff's trees, committing any acts of waste, or in any other manner interfering with the plaintiff's land parcel No. NYAKI/KITHOKA/1697.
- An order for the Land Registrar Imenti North District to visit Land Parcels Nos. NYAKI/KITHOKA/1697 and NYAKI/KITHOKA/1671 and affix the beacons.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
ELC CASE NO. 35 OF 2012
M'IKUNYUA MWONGERA.............................................................................PLAINTIFF
VERSUS
NJERI WA CHEGE..............................................................................1ST DEFENDANT
JOHN KIMANI CHEGE........................................................................2ND DEFENDANT
RICHARD KAMAU CHEGE................................................................3RD DEFENDANT
WANJIRU CHEGE..............................................................................4TH DEFENDANT
JUDGEMENT
In this suit, an Interlocutory Judgment was entered for the plaintiff on 20th September, 2012.
Formal proof hearing was conducted on 26. 6.2013.
The plaintiff in his evidence said that his land parcel No. NYAKI/KITHOKA/1697 bordered the land owned by the father of the second, third and fourth defendants. The first defendant is the wife of the owner of the land and mother of the second, third and fourth defendants. During the rainy season there is a seasonal river that changes course and enters the plaintiff's parcel of land. As a result, the defendants, after the rains, change the boundaries of the two parcels of land and encroach upon the plaintiff's land parcel Number NYAKI/KITHOKA/1697.
The plaintiff produced the original Title Deed of Land Parcel Number NYAKI/KITHOKA/1697 as proof of ownership.
The plaintiff asked the Court for judgment against the defendants jointly and severally for an injunction to refrain the defendants from wasting or in any other manner interfering with his land and for an order for the Land Registrar to visit Land Parcels Nos. NYAKI/KITHOKA/1697 and 1671 and to fix the beacons. He also asked the court to award him damages.
I find that the plaintiff has formally proved his case. I issue the following orders:
(a) An order of permanent injunction restraining the defendants, their agents,servants and/or employees from entering, cutting down the plaintiff's trees, committing any acts of waste, or in any other manner interfering with the plaintiff's land parcel No. NYAKI/KITHOKA/1697.
(b) An order for the Land register Imenti North District to visit Land Parcels Nos. NYAKI/KITHOKA/1697 AND NYAKI/KITHOKA/1671 and affix the beacons.
I award costs to the plaintiff.
Delivered and Signed in Open Court at Meru this 26th day of June, 2013 in the presence of :
Cc Mwonjaru
Cc Daniel
V. P. Gituma for plaintiff
P. M. NJOROGE
JUDGE