[2017] KEHC 5705 (KLR)
The court found that the plaintiff, despite alleging interference, admitted to having been in continuous possession and use of the land since 1994. There was no evidence of actual prevention by the defendant, nor any report to police or local authorities regarding the alleged interference. The court held that mere...
Source-derived case information.
- Citation
- [2017] KEHC 5705 (KLR)
- Parties
- Plaintiff: Mode of Proceedings; Plaintiff: Godfrey Wamalwa Lwanda; Defendant: Charles Wekhomba
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 95 of 2016
- Procedural Posture
- Land Case / Judgment
- Outcome
- suit dismissed
- Legal Topics
- Trespass to Land, Permanent Injunction, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mode of Proceedings
Plaintiff
Godfrey Wamalwa Lwanda
Plaintiff
Charles Wekhomba
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the defendant unlawfully interfered with the plaintiff's possession and use of land parcel Kimilili/Kimilili/1149.
- 2 Whether the plaintiff is entitled to a permanent injunction and eviction order against the defendant.
Ratio Decidendi
The court found that the plaintiff, despite alleging interference, admitted to having been in continuous possession and use of the land since 1994. There was no evidence of actual prevention by the defendant, nor any report to police or local authorities regarding the alleged interference. The court held that mere apprehension or intention to trespass, without concrete acts preventing the plaintiff's use or occupation, does not meet the threshold for granting an eviction or permanent injunction. Consequently, the suit lacked merit and was dismissed.
Court Disposition
suit dismissed
Orders
- The suit is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA
ENVIRONMENT AND LAND CASE NO. 95 OF 2016.
MODE OF PROCEEDINGS………………………………….1ST PLAINTIFF
GODFREY WAMALWA LWANDA…………………………2ND PLAINTIFF
VERSUS.
CHARLES WEKHOMBA………………………………….…DEFENDANT
JUDGMENT
[1].The Plaintiff claim is that he is the registered owner of land parcel Kimilili/Kimilili/1149. That on 2nd September 2016, the defendant unlawfully stopped him from constructing a permanent house on his aforesaid parcel and that the Defendant planted napier grass thereon. The plaintiff alleges that the plaintiff’s intention is to trespass on the plaintiffs land. He has set the particulars of the intended trespass. He prays for a permanent injunction restraining the defendant by himself, his servants or agents from interfering with the possession and use of the land. He further prays for an order of eviction.
[2].The defendant who was served, filed no pleadings. During the hearing the Plaintiff produced a copy of his title deed. That on 2/9/2016 the defendant came and stopped him from constructing his house. However, he told the court that he is still using the land up to day. He said that he has been on the land since 1994.
[3].Having listened to the Plaintiff, and heard his evidence that he has been on his land since 1994 todate, I am not convinced that he has been prevented by the defendant from the user of his land. There is no dispute referred to the police and or other local authorities. Apprehension and/or intention by itself, is not enough to sustain a case for eviction. This suit has no merits and is dismissed with no order of costs.
Judgment read in open Court in the presence of Mr. Juma.
DATED at BUNGOMA this 23rd day ofMay, 2017.
S. MUKUNYA
JUDGE.
In the presence of:
Joy/Gladys: Court Assistant
Mr. Juma holds brief for Areba for Plaintiff
Defendant In person