[2014] KEHC 2367 (KLR)
The court found that the plaintiff had proved ownership of the suit land through documentary evidence and that the defendant, having been properly served but failing to respond, had no defence to the claim. The defendant's actions of entering the land, erecting structures, fencing, and constructing a toilet without...
Source-derived case information.
- Citation
- [2014] KEHC 2367 (KLR)
- Parties
- Plaintiff: William Oraro Ongany; Defendant: Leonard Obungo Ayieko
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 117 of 2012
- Procedural Posture
- Land and Environment Case / Final Judgment
- Outcome
- Judgment for the plaintiff.
- Legal Topics
- Trespass to Land, Permanent Injunction, Vacant Possession, Demolition of Structures
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Oraro Ongany
Plaintiff
Leonard Obungo Ayieko
Defendant
Procedural Posture
Land and Environment Case / Final Judgment
Legal Issues
- 1 Whether the defendant trespassed onto the plaintiff's land parcel No. KISUMU/KOGONY/2754.
- 2 Whether the plaintiff is entitled to a permanent injunction restraining the defendant from interfering with the suit land.
- 3 Whether the defendant should be compelled to vacate and demolish structures on the suit land.
Ratio Decidendi
The court found that the plaintiff had proved ownership of the suit land through documentary evidence and that the defendant, having been properly served but failing to respond, had no defence to the claim. The defendant's actions of entering the land, erecting structures, fencing, and constructing a toilet without the plaintiff's consent amounted to trespass. The absence of any defence or contrary evidence meant the plaintiff's case was unchallenged. The court held that the plaintiff was entitled to a permanent injunction restraining the defendant from further trespass, an order for the defendant to vacate and demolish the structures, and costs of the suit. The court further ordered that...
Court Disposition
Judgment for the plaintiff.
Orders
- A permanent injunction restraining the defendant from trespassing, encroaching, alienating, or dealing in any way with land parcel No. KISUMU/KOGONY/2754.
- The defendant is ordered to vacate the suit land and demolish all structures constructed thereon.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
LAND AND ENVIRONMENT NO.117 OF 2012
WILLIAM ORARO ONGANY................................................................PLAINTIFF
VERSUS
LEONARD OBUNGO AYIEKO.......................................................DEFENDANT
FINAL JUDGMENT
The plaintiff – WILLIAM ORARO ONGANY – filed this suit here on 3/12/2012 vide a plaint dated 22/10/2012. The suit is against the defendant LEONARD OBUNGO AYIEKO– who is said to have trespassed into land parcel No. KISUMU/KOGONY/2754 belonging to the plaintiff.
The alleged trespass forms the basis of this suit. The defendant is said to have trespassed into the land and put up three (3) semi-permanent structures. He has also fenced and constructed a toilet.
The plaintiff is praying for a permanent injunction to restrain the defendant from trespassing, encroaching, alienating or dealing in any way with the plaintiff's parcel No. KISUMU/KOGONY/2754 (Suit land hereafter). He also craves for an order compelling the defendant to vacate the suit land and demolish all the structures constructed thereon. Costs of the suit are also asked for.
It appears clear that the defendant was served. He however did not bother to enter appearance and/or file defence. The fact of service is vouched for vide an affidavit of service filed here on 25/4/2013 sworn by Moses Rumbe Ojwang and dated 9/1/2013. The affidavit of service shows there was first unsuccessful attempt at service on 24/12/2012 but the second attempt, this time on 29/12/2012, was successful. The defendant was evidently served at his workshop at or near Eldoret Bus stage after being pointed out by one of his colleagues.
Despite service, the defendant didn't take any action. This necessitated a request for entry of judgment against him and such judgment was entered on 26/4/2013, a day after a written request was filed.
The matter then came for formal proof on 1/7/2014. The plaintiff mainly reiterated the averments in the plaint. In addition, the following exhibits were availed:-
- Copy of green card (plf Ex No.2)
- Copy of Search showing plaintiff as owner of the suit land (plf Ex No.3)
- Copy of map from Land office showing the suit land (Plt EX No.4).
The suit is uncontroverted. The plaintiff has demonstrated well that he owns the suit land. The input from the defence is lacking. There is therefore nothing standing in the way of what the plaintiff is seeking.
I therefore make a finding that the plaintiff is a trespasser into the suit land and his actions of putting up semi permanent structures, constructing a toilet and fencing are all illegal. The plaintiff therefore gets an order injuncting the defendant from trespassing, encroaching or in any way dealing or interfering with the suit land. The defendant is ordered also to vacate the suit land and demolish the structures he has put up on it. The plaintiff should first give a notice of 3 months to the defendant to demolish the structures. If the defendant fails to do so within that period, the plaintiff is at liberty to do the demolition. The plaintiff also gets costs of this suit. In short, the plaintiff gets prayers (a) (b) and (c) as spelt out in the plaint.
A.K. KANIARU – JUDGE
7/10/2014
7/10/2014
A.K. Kaniaru – Judge
Dianga G. - court clerk
No party present
Interpretation: English/Kiswahili
COURT: Notice to deliver judgment herein was sent on 18/9/2014. Final judgment is therefore read and delivered in open court.
Right of Appeal – 30 days.
A.K. KANIARU – JUDGE
7/10/2014