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ELCAllowedNot stated in the judgment· [2017] KEELC 2799 (KLR)

Benjamin Charo Kenga v Dama George Kazungu Kithi & 3 others [2017] KEELC 2799 (KLR)

Environment and Land Court
12 May 2017
JOJ.O. OLOLAOAO.A. ANGOTE
413 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that a land buyer with a title deed, Land Control Board consent and documents can evict trespassers and keep others off the land permanently.

What this practically means

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Executive summary

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The Plaintiff sued claiming that parcel Kilifi/Vipingo/375 was registered in the name of Kazungu Kithi Kombe, the 1st Defendant's deceased husband; that he bought a portion of it in 2010 from the late Kazungu, that the land was sub-divided and Plot No. 400 registered in his name, and that on 19th June, 2015 the Defendants trespassed on the land. He sought vacant possession and a permanent injunction. The Defendants, in a Defence filed but not prosecuted, averred that the Plaintiff acquired Kilifi/Vipingo/400 illegally and that they believed he was entitled to only 3 acres, not 4. When the matter came up for hearing on 3rd October, 2016 neither the Defendants nor their advocate attended despite service, and it proceeded ex parte. The Plaintiff testified that he bought 3 acres for Kshs. 300,000 under an agreement dated 25th April, 2009 and a further acre for Kshs. 200,000 on 7th January, 2010, both from the Defendants' father; that the land was sub-divided, Land Control Board consent obtained and a Title Deed issued to him. He produced the Transfer forms, Mutation forms, Title Deed and Official Search, which showed he purchased 1.6Ha (approximately 4 acres). The court found the documents proved the acquisition and held the Plaintiff entitled to peaceful use and occupation without interference. The Plaint dated 9th September, 2015 was allowed as prayed. No costs order appears in the judgment.

Key legal issues

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01

Validity of the Plaintiff's acquisition and title to Kilifi/Vipingo/400

Holding

The Plaintiff proved lawful purchase of 4 acres from the Defendants' father, sub-division, Land Control Board consent and issuance of a Title Deed in his name

Reasoning

The Plaintiff testified that he bought 3 acres for Kshs. 300,000 by agreement dated 25th April, 2009 and a further acre for Kshs. 200,000 on 7th January, 2010. The documents produced - Transfer forms, Mutation forms, Title Deed and Official Search - confirmed that 1.6Ha (approximately 4 acres) was purchased and transferred to him. The Defendants, though served, did not appear or rebut this evidence.

p. 2
02

Entitlement to vacant possession and permanent injunction

Holding

The Plaintiff, as registered proprietor in possession, was entitled to vacant possession and a permanent injunction against the Defendants

Reasoning

Having established title and possession since purchase, and the Defendants having trespassed on 19th June, 2015, the court found the Plaintiff entitled to peaceful occupation without interference and allowed the Plaint as prayed.

p. 2

Legal principles established

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  • A purchaser who has lawfully acquired land, obtained Land Control Board consent and been registered as proprietor is entitled to peaceful use and occupation free from interference

Court orders

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  1. 1.The Plaintiff's Plaint dated 9th September, 2015 is allowed as prayed
  2. 2.Vacant possession of the suit land as prayed in the Plaint
  3. 3.Permanent injunction as prayed in the Plaint
Jurisdiction invoked
Original civil suit under the Environment and Land Court jurisdiction (specific provision not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Benjamin Charo Kenga v Dama George Kazungu Kithi & 3 others [2017] KEELC 2799 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2799/eng@2017-05-12

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