[2017] KEHC 668 (KLR)
The court found that the plaintiff, Mohamed Duba Galgalo, had established ownership of the disputed parcel of land through the production of a valid title deed and sale agreement. The defendant, Yusuf Haji, failed to attend the hearing or provide any evidence to support his claim or rebut the plaintiff's evidence....
Source-derived case information.
- Citation
- [2017] KEHC 668 (KLR)
- Parties
- Plaintiff: Mohamed Duba Galgalo; Defendant: Yusuf Haji
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 218 of 2012
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- judgment for the plaintiff in HCCC 218 of 2012; suit by Yusuf Haji in HCCC 217 of 2012 dismissed
- Judges
- LC Komingoi
- Legal Topics
- Trespass to Land, Mandatory Injunction, Title to Land, Boundary Disputes
- 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
Mohamed Duba Galgalo
Plaintiff
Yusuf Haji
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the defendant unlawfully encroached and erected illegal structures on the plaintiff's parcel of land.
- 2 Whether the plaintiff is entitled to a mandatory injunction compelling the defendant to remove the illegal structure and cease trespass.
- 3 Whether the plaintiff is entitled to damages for trespass.
Ratio Decidendi
The court found that the plaintiff, Mohamed Duba Galgalo, had established ownership of the disputed parcel of land through the production of a valid title deed and sale agreement. The defendant, Yusuf Haji, failed to attend the hearing or provide any evidence to support his claim or rebut the plaintiff's evidence. The plaintiff's case was uncontroverted. The court held that the plaintiff was entitled to a mandatory injunction compelling the defendant to remove the illegal structure and cease trespass. However, the plaintiff did not provide evidence of actual loss suffered due to the trespass, and the court declined to award damages for trespass. Each party was ordered to bear their own...
Court Disposition
judgment for the plaintiff in HCCC 218 of 2012; suit by Yusuf Haji in HCCC 217 of 2012 dismissed
Orders
- A mandatory injunction is issued compelling the defendant to demolish and remove his illegal structure from the plaintiff's parcel of land and cease further trespass.
- Each party to bear his own costs.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 218 OF 2012
MOHAMED DUBA GALGALO .............. PLAINTIFF
VERSUS
YUSUF HAJI ........................... DEFENDANT
JUDGMENT
1. The Plaintiff in HCCC No 217 od 2012 Yusuf Haji filed this suit against the Defendants Mohammed Bin Mohamed Tuano and Mohammed Duba Galgalo seeking;
a) An Order to be issued to revoke the 1st and 2nd Defendants sale agreement and transfer of title deed CR 8734/127 being sub-divisions No 10461 (Original No 632/2/) Section I/MN on survey plan No 217809 comprised title deed dated 26/4/2011, costs of this suit until they conduct further subdivision of the said plot over my share.
b) Interest on court rates.
c) Any other or further relief as this Honourable Court may consider just.
2. In HCCC No 218 of 2012 the Plaintiff Mohammed Duba Galgalo has filed a suit against the Defendant seeking;
a) A mandatory injunction to compel the Defendant by himself, his servants and/or agents or otherwise howsoever to demolish and remove his illegal structure from the Plaintiff’s said parcel of land and cease trespassing thereon forwith.
b) Damages for trespass.
c) Costs of this suit and interest thereon at court rates.
d) Any other or further relief that this Honourable Court may deem fit and just to grant.
3. On 20/2/2013 it was agreed that the two files be consolidated and be heard together since the parties and the subject matter were the same.
Upon consolidation there was an attempt at mediation. The same did not bear any fruit hence no award was filed in court.
4. On 19/1/2017, the Plaintiff in HCCC No. 218 of 2012 fixed the suit for hearing on 4/4/2017. On 4/4/2017 when the matter came up for hearing, the Defendant who was fully served neglected to attend the hearing. The court upon being satisfied that the Defendant had been served directed that the matter do proceed ex parte.
5. It is the Plaintiff’s (Mohammed Duba Galgalo) case that he bought the house from Mohammed Birluano. He described it as Plot Number 10467 Section I Mainland North. He produced the certificate of title as exhibit PI. He told the court that the plot is registered in his name.
He further told the court that the Defendant who owns the neighboring plot has encroached on his plot. The states that he called a surveyor who confirmed the boundary but the Defendant disputed.
He also produced a copy of the sale agreement as exhibit P2.
6. Upon being served with copies of plaint and submissions to enter appearance, the Defendant (Yusuf Haji) filed a statement of defence dated 11/1/2013. He denied each and every allegation on the plaint.
7. I have considered the evidence on record and the exhibits produced by the Plaintiff herein.
The issue for determination is whether he (Mohammed Duba Galgalo) has established a case in a balance of probabilities as against the Defendant and the Plaintiff in HCCC 217 of 2012 (Yusuf Haji).
8. The Plaintiff relies on a copy of title deed and the sale agreement between himself and Mohammed Bin Mohammed Tuano dated 13/5/2011. The Plaintiff case is uncontroverted.
9. The Defendant Yusuf Haji squandered his opportunity to come to court to prove his claim. His claim appears not to be clearly defined. He does not state how his claim arose. Whether he bought it or acquired the same through other means. I find that his claim must fail.
10. Consequently, I find that the Plaintiff herein has made out a good case as against the Defendant. I note that his seeking damages for trespass. The court was not guided the same even by way of written submissions. The Plaintiff did not present before the court what loss he had suffered as a result of the trespass. The court cannot speculate. I therefore decline to award any damages for trespass.
11. The upshot of the matter is that the Plaintiff’s suit (Yusuf Haji) in HCCC No 217 of 2017 fails and the suit is dismissed.
12. Accordingly judgment is entered for the Plaintiff (Mohammed Duba Galgalo) in HCCC 218 of 2012 as follows;
a) That a mandatory injunction do and is hereby issued to compel the Defendant by himself, his servants and/or agents or otherwise howsoever to demolish and remove his illegal structure from the Plaintiffs said parcel of land and cease further trespass therein.
b) Each party to bear his own costs.
It is so ordered.
Dated, signed and delivered atMombasa on the1stday ofNovember 2017.
L. KOMINGOI
JUDGE
1/11/2017