[2016] KEELC 762 (KLR)
The court found that the Plaintiff had proved ownership of the suit property by producing the Certificate of Title and Certificate of Postal Search. The Defendant, having been served but failing to appear or defend, did not contest the Plaintiff's evidence. The Plaintiff also demonstrated that the Defendant had...
Source-derived case information.
- Citation
- [2016] KEELC 762 (KLR)
- Parties
- Plaintiff: Solomon G. Ngwatu; Defendant: Tinga Dume Tsuma
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 101 of 2014
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaintiff's suit allowed. Permanent injunction granted. Costs awarded to Plaintiff.
- Judges
- OA Angote
- Legal Topics
- Trespass to Land, Permanent Injunction, Ownership of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Solomon G. Ngwatu
Plaintiff
Tinga Dume Tsuma
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the Plaintiff is the registered proprietor of portion number 6307 Malindi.
- 2 Whether the Defendant trespassed on the Plaintiff's land.
- 3 Whether the Plaintiff is entitled to a permanent injunction and costs.
Ratio Decidendi
The court found that the Plaintiff had proved ownership of the suit property by producing the Certificate of Title and Certificate of Postal Search. The Defendant, having been served but failing to appear or defend, did not contest the Plaintiff's evidence. The Plaintiff also demonstrated that the Defendant had acknowledged trespassing and had received payment to vacate, but refused to do so. The court held that the Plaintiff, as registered proprietor, was entitled to exclusive possession and protection from trespass, and therefore granted a permanent injunction against the Defendant and awarded costs to the Plaintiff.
Court Disposition
Plaintiff's suit allowed. Permanent injunction granted. Costs awarded to Plaintiff.
Orders
- A permanent injunction is issued against the Defendant, his heirs, servants, agents or assigns from trespassing upon the Plaintiff's property known as portion number 6307 (original number 5645/29) Malindi.
- The Defendant to pay the costs of the suit.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO. 101 OF 2014
SOLOMON G. NGWATU..................................................................PLAINTIFF
=VERSUS=
TINGA DUME TSUMA..................................................................DEFENDANT
J U D G M E N T
1. In his Plaint dated 6th June, 2014, the Plaintiff is seeking for a permanent injunction directed against the Defendant or his servants from trespassing on land known as portion number 6307 Malindi (the suit property) and for general damages for trespass.
2. The Plaintiff has averred in the Plaint that at all material times, he was the registered proprietor of the suit property; that on or about the month of March, 2012, the Defendant trespassed on the suit property and that in a gesture of good will, he agreed and indeed did pay the Defendant the sum of Kshs.20,000 and allowed the Defendant to remain on the land for three months.
3. However, according to the Plaint, the Defendant has refused to vacate the suit property.
4. Although the Defendant was served, he neither entered appearance nor filed a Defence. The matter proceeded for formal proof on 28th April, 2016.
5. The Plaintiff, PW1, informed the court that he is the registered proprietor of the suit property; that the Defendant invaded the suit property in March 2012 and that the Defendant acknowledged receipt of Kshs.20,000 and also acknowledged that he had trespassed on the suit property.
6. The Plaintiff produced in evidence the Certificate of Title for portion number 6307.
7. The Certificate of Title shows that the suit property was transferred to the Plaintiff by the administrators of the Estate of the late Walter Obiero Sionga on 27th June, 2013.
8. The Plaintiff also produced a Certificate of Postal search as at 14th April, 2014. The Certificate of Postal Search shows that the Plaintiff is the registered proprietor of the suit property.
9. In view of the Certificate of Title and the official search that were produced in court, I am satisfied that the Plaintiff has proved that he is the registered proprietor of the suit property and should be allowed to occupy and possess it quietly.
10. For those reasons, I allow the Plaintiff's Plaint dated 6th June, 2014 in the following terms:
(a) A permanent injunction be and is hereby issued against the Defendant, his heirs, his servants, agents or assigns from in any way trespassing upon the Plaintiff's property known as portion number 6307 (original number 5645/29) Malindi.
(b) The Defendant to pay the costs of the suit.
Dated, signed and delivered in Malindi this 1st day of July, 2016.
O. A. Angote
Judge