[2009] KEHC 2509 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

CIVIL SUIT 67 OF 2004

THOMAS NYAOMA ONGONDO …….. PLAINTIFF

VERSUS

1. THE DISTRICT LAND REGISTRAR,NYAMIRA)

2. THE DISTRICT LAND SURVEYOR,NYAMIRA)

3. STEPHEN MABEYA ARIERI…… DEFENDANTS

JUDGMENT

The plaintiff filed this suit by virtue of a Power of Attorney given to him by his father, Alexander Ongondo Ongondo, the registered proprietor of Land Parcel No. Borabu/Manga/254. He claimed that sometimes in the year 2004, the first defendant notified the plaintiff that he would visit that parcel of land and the neighbouring parcel known as Borabu/Manga/255 owned by the 3rd defendant to resolve a boundary dispute between the two proprietors of the aforesaid parcels of land. The plaintiff wrote to the 1st defendant and proposed another date but he received a reply subsequently from the 1st defendant alleging that the boundary dispute had been resolved on 26th February 2004 and ordered the plaintiff to observe the new boundary features. The plaintiff alleged that the purported demarcation of the boundary was illegal as he was not aware of it and neither did he participate in the exercise. He urged the court to make a declaration to that effect. He also prayed for an order requiring the first and second defendants to produce original demarcation maps so as to ascertain the proper boundary between the two parcels of land.

The 3rd defendant filed a statement of defence and counter-claim. He denied the plaintiff’s claim in toto and stated that the plaintiff had no locus standi to bring the suit. By way of a counter claim, he stated that he is the registered proprietor of a parcel of land known as Manga Settlement Scheme/255 measuring 6. 6 hectares. He further stated that on diverse dates since the year 2002, the plaintiff, who resides on the neighbouring land parcel No. Manga Settlement Scheme/254 destroyed the common boundary between the two parcels of land and entered into his land, cultivated a part of it and destroyed his cabbages planted thereon. He went on to state that the dispute had been arbitrated upon by the District Land Registrar and Surveyor at the instance and request of the plaintiff. It was found that the plaintiff had encroached onto his land. The 3rd defendant prayed for an order of injunction to restrain the plaintiff from interfering with the common boundary in any manner whatsoever. He also prayed for general damages for trespass.

The 1st and 2nd defendants filed a joint statement of defence and denied the plaintiff’s claim. They stated that the boundary dispute was duly determined in accordance with the procedure prescribed by law in the presence of all the parties.

The plaintiff’s suit was dismissed with costs for want of prosecution on 15th March 2006. His effort to reinstate the suit was unsuccessful as the Power of Attorney vide which the suit had been filed was revoked by his father, the registered proprietor of Manga Settlement Scheme/254.

Upon dismissal of the plaintiff’s suit, the 3rd defendant proceeded with his counter claim pursuant to the provisions of Order VII Rule 12of theCivil Procedure Rules.

The 3rd defendant testified and produced the Green Card in respect of land parcel No. Manga Settlement Scheme/255 to prove that the said parcel of land is registered in his name. He further stated that the plaintiff trespassed onto his land sometimes in the year 2002. He destroyed a common boundary and unlawfully occupied about one acre of his land. He is planting crops thereon. The Land Registrar came to the land on 26th February 2004 at the invitation of the plaintiff’s father. The Land Registrar established that the plaintiff had encroached on to his land and he fixed the boundary at the right place. He planted gum tree beacons on the right boundary. The Land Registrar was accompanied by the District Surveyor. The plaintiff removed the beacons and continued to use the 3rd defendant’s land unlawfully.

The 3rd defendant wrote to the District Land Registrar and informed him that the plaintiff had removed the beacons. The Land Registrar returned to the site on 12th May 2009 at the invitation of Alexander Ongondo and returned the beacons that had been removed. He urged the court to issue an injunction to restrain the plaintiff from trespassing to his land. The 3rd defendant further stated that he used to plant cabbages, maize and beans on the one acre of land that the plaintiff has been occupying unlawfully. He alleged that he used to get returns of about Kshs. 70,000/= per year. He therefore urged the court to award general damages for trespass.

Machora Hezekiah Oira Mongare, the District Land Registrar, Kisii, formerly District Land Registrar, Nyamira, testified that he had fixed the boundary between the two parcels of land. He was accompanied by the District Surveyor and he produced a report dated 13th May 2009 together with a report done by the District Surveyor. It was established that the plaintiff had trespassed onto the 3rd defendant’s parcel of land and unlawfully occupied a portion measuring 0. 153 hectares (0. 4 acres).

The 3rd defendant’s evidence was not controverted at all as the plaintiff did not attend court following dismissal of his suit. From the evidence adduced by the 3rd defendant and the District Land Registrar, there is no dispute that the plaintiff unlawfully encroached onto the 3rd defendant’s parcel of land, having destroyed the common boundary between the two parcels of land. He has been in unlawfully possession and occupation of the 3rd defendant’s parcel of land as a result of which the 3rd defendant was prevented from growing cabbages, maize and other crops as he used to.

In the circumstances, the order of a permanent injunction as sought by the 3rd defendant is hereby issued restraining the plaintiff, his servants and/or agents from trespassing and/or interfering in any manner whatsoever with the 3rd defendant’s parcel of land known as Manga Settlement Scheme/255. Although the 3rd defendant did not strictly prove that he was earning a sum of Kshs. 70,000/= per year from the use of his portion of land, which was unlawfully occupied by the plaintiff, I am satisfied that an award of general damages ought to be made. The plaintiff is awarded general damages for trespass and loss of use of his land in the sum of Kshs. 250,000/=. If the plaintiff is still in unlawful occupation of the 3rd defendant’s land he should vacate forthwith failing which he shall be forcefully evicted. The 3rd defendant shall have costs of the counter claim. Costs of the plaintiff’s suit had already been awarded to the 3rd defendant.

DATED, SIGNED AND DELIVERED AT KISII THIS 28th DAY OF JULY, 2009.

D. MUSINGA

JUDGE.

28/7/2009

Before D. Musinga, J.

Mobisa – cc

Mr. Minda for Mrs. Asati for the Plaintiff.

N/A for the Defendant.

COURT: Judgment delivered in open court.

D. MUSINGA

JUDGE.