[2009] KEHC 780 (KLR)
The court found that the plaintiff was the registered proprietor of the suit land and that the defendants, without any lawful justification, trespassed onto the land, erected structures, and buried a body thereon. The defendants failed to enter appearance or file a defence, and the plaintiff's evidence was...
Source-derived case information.
- Citation
- [2009] KEHC 780 (KLR)
- Parties
- Plaintiff: Rhodah Nyangoto Oirere; Defendant: Joyce Kemunto; Defendant: Jackline J. Nyandika
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 44 of 2006
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the plaintiff.
- Legal Topics
- Trespass to Land, Eviction, Burial Rights, Damages for Trespass
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rhodah Nyangoto Oirere
Plaintiff
Joyce Kemunto
Defendant
Jackline J. Nyandika
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendants trespassed onto the plaintiff's land and unlawfully buried a body thereon.
- 2 Whether the plaintiff is entitled to eviction orders, demolition of structures, exhumation of the body, and general damages.
Ratio Decidendi
The court found that the plaintiff was the registered proprietor of the suit land and that the defendants, without any lawful justification, trespassed onto the land, erected structures, and buried a body thereon. The defendants failed to enter appearance or file a defence, and the plaintiff's evidence was uncontroverted. The court held that the plaintiff was entitled to eviction orders and a permanent injunction against the defendants. The court further held that exhumation of the body would be subject to public health authority approval. As no evidence was provided regarding the quantum of damages, the court awarded Kshs. 50,000 in general damages for trespass. Costs and interest were...
Court Disposition
Judgment for the plaintiff.
Orders
- Defendants to be evicted from Land parcel no. Majoge/Bombaba/1333.
- Permanent injunction restraining the defendants from further trespass.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII
Civil Case 44 of 2006
RHODAH NYANGOTO OIRERE..............................PLAINTIFF
-VERSUS-
JOYCE KEMUNTO...................................................1ST DEFENDANT
JACKLINE J. NYANDIKA..........................................2ND DEFENDANT
JUDGMENT
From the evidence, the plaintiff is the registered proprietor of Land parcel no. Majoge/Bombaba/1333. Her complaint was that on 26/11/2005 the defendants trespassed onto his piece of land and buried the remains of the late James Oirere (the son of 1st defendant) after having erected a semi-permanent house thereon. The defendants have since continued to trespass on the land and to destroy boundary features and destroy crops growing thereon. They have denied the plaintiff the use of the land and caused extensive waste to it. She sought an order evicting the defendants from the land and demolition of the structures the defendants have put up thereon. She sought the interference be stopped and the remains of the late James Oirere be exhumed. General damages were asked for together with costs and interest.
The defendants did not enter Appearance or file Defence. An interlocutory judgment was entered on 20/6/2007. The plaintiff gave evidence in formal proof which was not controverted. She is entitled to the orders of eviction and permanent injunction. The
exhumation of the body of the late James Oirere will be subject to any public health concerns by the relevant authority.
No evidence was given as to how much damages should be payable. There was no evidence as to how much, in monetary terms, has been lost because of the trespass. However, the fact of trespass was proved as was the burial of the body here. I will award Kshs. 50,000/= (fifty thousand) in general damages. Costs and interest shall follow the event.
Dated, signed and delivered at Kisii this 10th day of November, 2009
A.O.MUCHELULE
JUDGE
10/11/2009
Before A.O.Muchelule-J
Court clerk-Mongare
Mr. Masese for Mr. Minda for plaintiff
COURT: Judgment in open court
A.O.MUCHELULE
JUDGE
10/11/2009