[2013] KEHC 5486 (KLR)
The court found that the plaintiff was the registered owner of Gede/Dabaso/608, having produced both the title deed and the sale agreement as evidence. The defendants, who failed to appear or defend the suit, were found to have unlawfully entered, cut down trees, and cultivated the plaintiff's land. The court held...
Source-derived case information.
- Citation
- [2013] KEHC 5486 (KLR)
- Parties
- Plaintiff: Reuben Baya Kenga; Defendant: Munga Fikiri Changawa Kombe; Defendant: Emmanuel Kajiwe Changawa Kombe; Defendant: David Changawa Kombe; Defendant: Changawas Kombe Nzai
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 156 of 2012
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaintiff's suit allowed in full.
- Judges
- OA Angote
- Legal Topics
- Trespass to Land, Eviction Orders, Permanent Injunction, Damages for Trespass
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Reuben Baya Kenga
Plaintiff
Munga Fikiri Changawa Kombe
Defendant
Emmanuel Kajiwe Changawa Kombe
Defendant
David Changawa Kombe
Defendant
Changawas Kombe Nzai
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff is the registered owner of Gede/Dabaso/608 entitled to exclusive possession and use of the property.
- 2 Whether the defendants unlawfully trespassed onto the plaintiff's land and interfered with his proprietary rights.
- 3 Whether the plaintiff is entitled to eviction orders, a permanent injunction, damages for trespass, and costs.
Ratio Decidendi
The court found that the plaintiff was the registered owner of Gede/Dabaso/608, having produced both the title deed and the sale agreement as evidence. The defendants, who failed to appear or defend the suit, were found to have unlawfully entered, cut down trees, and cultivated the plaintiff's land. The court held that such acts constituted trespass and a violation of the plaintiff's proprietary rights protected under Article 40(1) of the Constitution. The court determined that the plaintiff was entitled to eviction orders, a permanent injunction restraining further interference, general damages for trespass assessed at Kshs.100,000, and costs of the suit. The absence of any defence or...
Court Disposition
Plaintiff's suit allowed in full.
Orders
- The defendants, their agents, servants or any person acting under them are hereby evicted from the plaintiff’s land known as Gede/Dabaso/608.
- A permanent injunction is issued restraining the defendants, their agents or any person acting under them from interfering in any way with the plaintiff's use and enjoyment of land known as Gede/Dabaso/608.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
CIVIL CASE NO. 156 OF 2012
REUBEN BAYA KENGA...................................................PLAINTIFF
=VERSUS=
MUNGA FIKIRI CHANGAWA KOMBE……….… 1ST DEFENDANT
EMMANUEL KAJIWE CHANGAWA KOMBE…. 2ND DEFENDANT
DAVID CHANGAWA KOMBE……………......……..3RD DEFENDANT
CHANGAWAS KOMBE NZAI..................................4TH DEFENDANT
JUDGMENT
The Plaintiff moved the court by way of a Plaint dated 21st September, 2012 seeking for the following orders:
An order of eviction from the Plaintiff's parcel of land known as Gede/Dabaso/608 situated within Malindi county and subsequent removal of any erections/structures standing thereon.
A permanent injunction restraining the Defendant from interfering in any way with the Plaintiff's use and enjoyment of plot number Gede/Dabaso/608.
Damages for trespass
Costs and interest of the suit.
The Plaintiff has averred in his Plaint that he is the registered owner of land known as Gede/Dabaso/608 measuring 2. 43 Ha (the suit property).
On the said land, the Plaintiff has made developments and planted mango and coconut tress
The Plaintiff has further averred that the Defendants have, without any justifiable cause, encroached on the suit property, cut down trees and continue trespassing on the suit property oblivious of the Plaintiffs' proprietary interests in the suit property.
The Defendants were served with the Summons to Enter Appearance and the Plaint on 28th September 2012 but have never entered appearance or filed their defences. The matter proceeded for hearing on 6th June 2013 in the absence of the Defendants.
The Plaintiff, PW1 informed the court that the Defendants who are known to him, are his neighbours. The Defendants father, Changawa Kombe Nzai is the one who sold to the Plaintiff the suit property and the Plaintiff obtained a title deed for the suit property in 1999.
PW1 produced the title issued on 26th November 1999 as exhibit number 1. The Plaintiff also produced the Agreement of Sale showing that he purchased the suit property for Kshs.100,000 as exhibit number 2.
PW1 testified that the Defendants invaded his land and cut his mango trees, coconut trees and started cultivating the land claiming that it belonged to them. The Plaintiff (PW1) wants this court to stop the Defendants from continuing with their acts of trespass.
On cross examination by the court, the Plaintiff stated that he bought the suit property in 1978 and that he has been staying on the land with his family since then.
Safari Kazungu Ngoi, PW2, stated that the Plaintiff was his neighbour. PW2 testified that the suit property belonged to the Plaintiff and that the Defendants invaded the Plaintiff's land and cut down mango trees.
According to PW2, the Defendants are now cultivating the suit property notwithstanding the fact that the property belongs to the Plaintiff.
George Katana, PW3, informed the court that he has been working for the Plaintiff since 2007.
It was PW3's evidence that he was working on the suit property when one of the sons of the person who sold the suit property to the Plaintiff, the 1st Defendant went to the suit property and started cutting down coconut trees. A month later, the said son cut down the mango trees and he is currently cultivating the land.
According to the witness, the 1st Defendant is cultivating the suit property despite the fact that he has his own land.
The Plaintiff's counsel made short oral submissions on the same day and reinstated the testimony by the witnesses. I considered the said submissions.
It is not in dispute that the Plaintiff is the registered owner of Gede/Dabaso/608 which he bought from the Defendants’ father.
The Plaintiff produced in evidence the original title deed and the Sale Agreement between himself and the Defendants’ father, Changawa Kombe Nzai.
The Plaintiff's witness informed the court that the Defendants invaded the Plaintiff's parcel of land, cut down coconut and mango trees and started cultivating the land while aware that the land belonged to the Plaintiff. That is an act of hooliganism which this court cannot condone. The Plaintiff's proprietary interests in the suit property should be protected as provided for under Article 40(1) of the Constitution.
The court was informed that the act of trespass by the Defendants is going on. In the circumstances, the Defendants should pay general damages for the said trespass which I assess at Kshs.100,000.
For the above reasons, I allow the Plaintiff’s Plaint in the following terms:
(a) The Defendants, their agents, servants or any person acting under them be, and are hereby evicted from the Plaintiff’s land known as Gede/Dabaso/608.
(b) A permanent injunction be and is hereby issued restraining the Defendants, their agents or any person acting under them from interfering in any way with the Plaintiff's use and enjoyment of land known as Gede/Dabaso/608.
(c) The Defendants jointly and severally to pay the Plaintiff Kshs.100,000/- being damages for trespass.
(d) The Defendants to pay the costs of the suit and interest on (c) above at court rates.
Dated and Delivered in Malindi this 25h day of July,2013
O. A. Angote
Judge