[2010] KEHC 3397 (KLR)
The court found that the plaintiff is the registered proprietor of the disputed land and that the defendants had encroached upon it, as confirmed by the Land Registrar's report and the plaintiff's title deed. The absence of the defendants at trial and the corroborated evidence from the Land Registrar established the...
Source-derived case information.
- Citation
- [2010] KEHC 3397 (KLR)
- Parties
- Plaintiff: Dr. Samson Auma; Defendant: Jared Shikulu; Defendant: John Kasamani
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 175 of 2000
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaintiff's case granted as prayed; injunction and eviction orders issued; no damages awarded; costs to plaintiff.
- Legal Topics
- Boundary Disputes, Land Encroachment, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Samson Auma
Plaintiff
Jared Shikulu
Defendant
John Kasamani
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendants encroached on the plaintiff's land.
- 2 Whether the plaintiff is entitled to an injunction restraining the defendants from interfering with his land.
- 3 Whether the defendants should vacate the encroached portions of the plaintiff's property.
Ratio Decidendi
The court found that the plaintiff is the registered proprietor of the disputed land and that the defendants had encroached upon it, as confirmed by the Land Registrar's report and the plaintiff's title deed. The absence of the defendants at trial and the corroborated evidence from the Land Registrar established the plaintiff's claim on a balance of probabilities. The court held that the plaintiff is entitled to protection of his property rights, an injunction restraining the defendants from further interference, and an order for the defendants to vacate the encroached portions. Damages were not awarded due to lack of evidence on quantum.
Court Disposition
Plaintiff's case granted as prayed; injunction and eviction orders issued; no damages awarded; costs to plaintiff.
Orders
- Defendants are restrained from interfering with the plaintiff's use of Plot No. NORTH WANGA/MATUNGU/865.
- Defendants to vacate the encroached portions of the suit property within thirty (30) days from the date of judgment, failing which they be evicted.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA
Civil Case 175 of 2000
DR. SAMSON AUMA…………………………….PLAINTIFF
VERSUS
1. JARED SHIKULU
2. JOHN KASAMANI………………………….DEFENDANTS
JUDGEMENT
The Plaintiff is the registered proprietor of plot Number NORTH WANGA/MATUNGU/865. He brought this suit against the defendants who are his neighbours seeking an order of injunction restraining them from encroaching on his land as well as an order that they do vacate from the encroached portions.
The matter proceeded ex-parte as the defendants were absent during the hearing despite having been served. The plaintiff’s case is that the defendants are the proprietors of Plot Numbers NORTH WANGA/MATUNGU/1135and1136. Since 1992 they have kept on shifting the boundary and have erected Semi Permanent structures on his plot. He produced his title deed for his plot aforesaid.
The plaintiff further testified that the matter was reported before the Land Registrar at Kakamega in 1998 and on 2nd February 1999, the Land Registrar and Surveyors visited the three plots and fixed the boundary. The Survey found that indeed the defendants had encroached on the Plaintiff’s land.
PW2, Andrew Akello used to work at the Kakamega Lands Office in 1999 as the Land Registrar. He was present when the boundary between the Plaintiff’s and the defendant’s land was being fixed on 2nd February, 1999. He went to the site with Surveyors, area Chief and Assistant Chief. The defendants were also present.
From the Plaintiff’s evidence and that of PW2, it is established that the Plaintiff is the proprietor of Plot No. NORTH WANGA/MATUNGU/865. The Plaintiff has also established that he has had a longstanding boundary dispute with his neighbours who are the defendants. A boundary dispute report prepared by PW2 established that the defendants encroached on the plaintiff’s land and some Semi Permanent structures belonging to the defendants stand on the Plaintiff’s land.
I do find that the Plaintiff has proved his case against the defendants. The Plaintiff’s case is granted as prayed in the Plaint. The defendants are hereby restrained from interfering with the Plaintiff’s use of his Plot NO. NORTH WANGA/MATUNGU/865. The defendants to vacate the encroached portions of the suit property WITHIN THIRTY (30) DAYS from the date of delivery of the judgement failing which they be evicted from the property. I shall not grant any damages as the Plaintiff failed to adduced evidence on the claim. The defendant’s shall pay the costs of this suit.
SAID J. CHITEMBWE
J U D G E
Delivered, Dated, and Countersigned at Kakamega this 16th day of March, 2010
ISAAC LENAOLA
J U D G E