[2019] KEELC 155 (KLR)
The court found that the plaintiff had proved ownership of the suit property and that the defendant had trespassed by constructing a mud house on it. The evidence was unchallenged as the defendant failed to participate in the proceedings. The court held that trespass is actionable per se and awarded general damages....
Source-derived case information.
- Citation
- [2019] KEELC 155 (KLR)
- Parties
- Plaintiff: Peter Waweru Ndungu; Defendant: Hannah Wanjiku Kimani
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 1514 of 2016
- Procedural Posture
- Land and Property Suit / Judgment After Formal Proof
- Outcome
- Judgment for the plaintiff.
- Judges
- LC Komingoi
- Legal Topics
- Trespass to Land, Injunctions, Damages for Trespass
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Waweru Ndungu
Plaintiff
Hannah Wanjiku Kimani
Defendant
Procedural Posture
Land and Property Suit / Judgment After Formal Proof
Legal Issues
- 1 Whether the defendant trespassed onto the plaintiff's parcel of land by constructing a mud house.
- 2 Whether the plaintiff is entitled to a mandatory and permanent injunction against the defendant.
- 3 Whether the plaintiff is entitled to general damages for trespass.
Ratio Decidendi
The court found that the plaintiff had proved ownership of the suit property and that the defendant had trespassed by constructing a mud house on it. The evidence was unchallenged as the defendant failed to participate in the proceedings. The court held that trespass is actionable per se and awarded general damages. The court further granted a mandatory injunction for removal of the structure and a permanent injunction restraining the defendant from further interference. The orders were based on the uncontroverted evidence and the legal principle that trespass to land entitles the owner to remedies including injunctions and damages.
Court Disposition
Judgment for the plaintiff.
Orders
- A mandatory injunction is issued directing the defendant to remove the structure in Plot No. Nguirubi/Ndiuni/T89 within sixty (60) days from the date of judgment. In default, the plaintiff is at liberty to evict her through lawful means.
- A permanent injunction is issued restraining the defendant and her agents from interfering with the suit plot.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC PETITION NO. 1514 OF 2016
PETER WAWERU NDUNGU…………………………………………. PLAINTIFF
VERSUS
HANNAH WANJIKU KIMANI……………………………………. DEFENDANT
JUDGEMENT
1. The plaintiff has filed this suit against the defendant seeking
(a) An order of injunction be issued directing the plaintiff to remove the structure in the Plot No. Nguirubi/Ndiuni/T89 and to restrain her by herself, her servants, agents, employees or any other person claiming her authority or otherwise howsoever from interfering, trespassing, in the said plot.
(b) Damages of trespass.
(c) Costs and interest.
(d) Any other or further relief this honourable court may deem fit and just to grant.
2. The defendant who was duly served with copies of plaint and summons stated appearance neglected and/or failed to enter appearance and or file defences within the prescribed period. Interlocutory judgment was then entered against the defendant and the matter set down for formal proof.
3. PW1 Peter Waweru Ndungu told the court that he bought the suit property from Robert Kiarie Ndungu. He told the court that he wished to rely on his witness statement dated 5th December 2016 and filed in court on the same date. He also relied on the list of documents dated 5th December 2016. He further told the court that the defendant has trespassed on to his parcel of land and constructed a mud house. He prays that she be compelled to vacate the suit property.
4. The plaintiff’s case is uncontroverted. In support of his case he produced the following documents as exhibits.
- A receipt dated 10th May 1990 exhibit P1.
- Provisional allocation card as exhibit P2
- Ballot card as exhibit P3.
- Map of the area as exhibit P4.
- Letter dated 8th December 2016 by County Council of Kiambu as exhibit P5.
- Document dated 21st October 2004 by the defendant’s mother in law as exhibit P6.
- Letter dated 23rd May 2005 by DO Nduiya as exhibit P7.
- Letter dated 9th November 2010 by the plaintiff as exhibit P8.
- Extract of Minutes of Kiambu County Council for 29th July 2003 and 21st August 2003 as exhibit P9.
- Photograph of the structure as exhibit P10.
- Demand letter as exhibit P11.
5. In conclusion, I find that the plaintiff has proved his case against the defendant on a balance of probabilities. The photograph shows a complete mud house. It is not in doubt that he defendant has trespassed onto the plaintiff’s suit house by constructing a mud house. Trespass is a tort which is actionable per se. I award Kshs.200,000/- being damages for trespass.
6. Accordingly judgment is entered in favour of the plaintiff as against the defendant as follows:-
(a) A mandatory injunction is hereby issued directing the plaintiff to remove the structure in the Plot No. Nguirubi/Ndiuni/T89 within sixty (60) days from the date of this judgment. In default, the plaintiff be at liberty to evict her through lawful means.
(b) A permanent injunction is hereby issued restraining the defendant by herself, her servant, agents, employees or any other person claiming under the authority or otherwise howsoever from interfering with the suit plot.
(c) General damages for trespass Kshs.200,000.
It is so ordered.
Dated, signed and delivered in Nairobi on this 18th day of December 2019.
L. KOMINGOI
JUDGE
In the presence of:-
Mr. Macharia for the Plaintiff
No appearance for the Defendant
Kajuju - Court Assistant