Samuel Kiboi Simatwa v Peter Mwaniki Njuguna [2017] KEELC 2557 (KLR)

Environment and Land Court

3 April 2017

MNMwangi Njoroge

425 words in judgment

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The bottom line

A Kenyan court evicted a landowner from 8 metres of his neighbour's plot after official boundary reports proved encroachment—and he skipped court.

What this practically means

Executive summary

The plaintiff sued the defendant in the Environment and Land Court at Kitale seeking eviction of the defendant, his agents and those claiming under him, from approximately 8 metres of the plaintiff's land, Plot No. Trans-Nzoia/Zea/377, together with costs. The plaintiff pleaded that the defendant encroached on his land and that the Trans-Nzoia Land Registrar, with the help of a Surveyor and in the presence of both parties, confirmed the encroachment, rendering the defendant a trespasser. The defendant, acting in person, denied the encroachment, asserting that he bought his plot in 2003 with boundaries as they remained, was issued a title in 2015, and that the plaintiff bought his plot later in 2009 and found the boundaries intact. In his witness statement the defendant said he was present on 4/7/2014 when the Registrar and Surveyor measured the plaintiff's land and found it to be 5 acres as per the title. The court, however, noted that the Land Registrar's Report dated 17/7/2014, produced as an exhibit, confirmed the encroachment, as did the County Surveyor's Report dated 14/7/2014. The defendant did not attend court to urge the merits of his defence, leaving the official reports uncontroverted. The court found the plaintiff's case proved on a balance of probabilities and granted prayer (a) of the plaint, ordering eviction from the encroached portion. Costs were not awarded to the plaintiff; each party was ordered to bear its own costs.

Key legal issues

Whether the plaintiff proved the alleged encroachment by the defendant

Holding

The court found the encroachment proved, relying on the Land Registrar's Report dated 17/7/2014 and the County Surveyor's Report dated 14/7/2014, both of which confirmed the encroachment, and the defendant's failure to attend court to urge his defence

Reasoning

The plaintiff pleaded that the defendant encroached about 8 metres onto his land and that the Land Registrar, assisted by a Surveyor and in the presence of both parties, confirmed the encroachment. The Registrar's Report produced as an exhibit confirmed the encroachment, as did the County Surveyor's Report. The defendant admitted being present during the boundary exercise but did not attend court to defend the merits, leaving the official reports uncontroverted. The court thus found the claim proved on a balance of probabilities.

p. 1

Whether the defendant should be evicted from the encroached portion

Holding

Prayer (a) of the plaint, seeking eviction of the defendant and those claiming under him from the encroached 8-metre portion, was granted

Reasoning

Having found the plaintiff's case proved on a balance of probabilities, and the defendant being a trespasser on the encroached portion, the court granted the eviction order sought in prayer (a) of the plaint dated 30th January, 2015. The court did not award costs of the suit to the successful plaintiff but ordered each party to bear its own costs.

p. 2

Legal principles established

A plaintiff's claim of encroachment supported by official reports of the Land Registrar and County Surveyor confirming the encroachment is proved on a balance of probabilities and justifies an order of eviction

Court orders

1.Eviction of the defendant, his agents, servants, employees and/or anyone claiming under him from the approximately 8 metres part of the plaintiff's land Plot No. Trans-Nzoia/Zea/377 (prayer (a) of the plaint)
2.Each party to bear its own costs

Jurisdiction invoked: Environment and Land Court jurisdiction over boundary encroachment and trespass disputes

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Samuel Kiboi Simatwa v Peter Mwaniki Njuguna [2017] KEELC 2557 (KLR)", Case Analysis (2017). Land Case No. 11 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2557/eng@2017-04-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.