[2009] KEHC 2217 (KLR)
The court found that the plaintiff had established, through documentary evidence, that he was the lawful owner of the suit property. The defendant, having failed to enter appearance or file a defence, did not rebut the plaintiff's evidence. The court accepted the plaintiff's testimony and exhibits as proof of...
Source-derived case information.
- Citation
- [2009] KEHC 2217 (KLR)
- Parties
- Plaintiff: Washingtonainda Ongata; Defendant: Eric Kimutai
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Case 69 of 2007
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the plaintiff.
- Judges
- CA Ombija
- Legal Topics
- Trespass to Land, Permanent Injunction, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Washingtonainda Ongata
Plaintiff
Eric Kimutai
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff is the lawful owner of L.R Plot No. 2116/263.
- 2 Whether the defendant trespassed onto the plaintiff's land and caused destruction.
- 3 Whether the plaintiff is entitled to a permanent injunction and damages for trespass.
Ratio Decidendi
The court found that the plaintiff had established, through documentary evidence, that he was the lawful owner of the suit property. The defendant, having failed to enter appearance or file a defence, did not rebut the plaintiff's evidence. The court accepted the plaintiff's testimony and exhibits as proof of ownership and trespass. On a balance of probabilities, the court held that the defendant unlawfully entered the plaintiff's land and caused destruction, entitling the plaintiff to a permanent injunction, damages for trespass, and costs. The quantum of damages was left for later assessment.
Court Disposition
Judgment for the plaintiff.
Orders
- A permanent injunction restraining the defendant, his servants and/or agents from entering, damaging and/or interfering in any way whatsoever and howsoever with land parcel known as L.R Plot No. 2116/263 situated in Kilimani area of Kitale Municipality within Trans Nzoia District.
- Damages for trespass on the subject parcel (to be assessed).
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
CIVIL CASE 69 OF 2007
WASHINGTONAINDA ONGATA::::::::::::PLAINTIFF
VERSUS
ERIC KIMUTAI:::::::::::::::::::::::::::::::::::::DEFENDANT
J U D G M E N T
By a plaint dated 2nd May, 2007 the plaintiff sought orders that
(a) The defendant, his servants and/or agents be restrained by way of a permanent injunction from entering, damaging and/or interfering in any way with land parcel known as L.R Plot No.2116/263.
(b) Damagesfor trespass on the subject parcel.
(c) Costs of the suit and interest thereon.
The plaintiff testified on oath that she is the registered owner of land parcel known as L.R No. 2116/263 situate in Kilimani residential area of Kitale Municipality within Trans Nzoia District. As evidence of ownership he tendered in evidence and/or produced a letter of allotment dated 12th September 1972 as Exhibit 1.
That he complied with conditions of allotment by paying Sh.5043 to the Commissioner of Lands as consideration. He produced receipt in respect thereof as Exhibit P2. Subsequently he was issued with a title deed on 1st September 1977 which he produced in evidence as Exhibit 3. Since then he has been paying land rates to the Municipality of Kitale. He produced land rate receipts issued on 7th September 2007 and 16th July 2008 as exhibits P4 and P5 respectively.
With a view to exerting his proprietory rights, he put up a structure on the said plot in 1979. Notwithstanding his proprietory rights in the year 2006, the defendant herein, without any colour of right trespassed onto the subject parcel and commenced acts of wanton destruction. In particular he destroyed the gate to the compound, broke the door to the house and finally commenced destruction of the main house. As evidence of massive destruction he produced several photographs in support. He produced the bricks where the house was as exhibit 6(a). he further produced photographs showing the debris of the demolished house and area of the scattered debris as exhibit 6(b) and 6 (c) respectively.
He was categorical that it is the defendant who demolished his house because initially he had sent his workers and/or agents to cut the grass. These workers and/or agents were arrested and the defendant bailed them out.
The defendant was served with summons to Enter Appearance but failed to Enter Appearance or file a defence.
In the circumstances, I have evidence of the plaintiff in support of his proprietory rights and no evidence from the defendant in rebuttal. In the premises, I find as a matter of law and fact that the defendant has made up the case for the orders sought for on a balance of probability.
Accordingly, there shall be judgment for the plaintiff against the defendant
(a) For a permanent injunction restraining the defendant, his servants and/or agents from entering, damaging and/or interfering in any way whatsoever and howsoever with land parcel known as L.R Plot No. 2116/263 situated in Kilimani area of Kitale Municipality within Trans Nzoia District.
(b) For damages for trespass on the subject parcel.
(c) Costs of the suit and interest thereon.
The plaintiff to set a date for assessment of damages.
Dated and delivered at Kitale this 25th day of May…2009.
N.R.O. OMBIJA
JUDGE
Mrs Munialofor Arunga for plaintiffs