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ELCAllowedLand Case No. 12 of 2012· [2017] KEELC 3391 (KLR)

Simon Kibet Kiptum v Joseph Yano [2017] KEELC 3391 (KLR)

Environment and Land Court
20 January 2017
EOE. Obaga
710 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kitale court evicted a land occupier after a surveyor's report proved he was farming his neighbour's plot despite denying it.

What this practically means

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Executive summary

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The plaintiff sued for eviction from Plot No. 1431 Milimani Settlement Scheme, which had been allotted to William Kipchoge Cheptoo and surrendered by him to the plaintiff to sustain his grandchildren. The defendant, the beneficial owner of the neighbouring Plots Nos. 1429 and 1432 which flank the suitland on either side, denied occupying the suitland and claimed to have nothing to do with it. The plaintiff testified that the suitland measures about 5 acres and that he was evicted from it by the defendant in 2002. The allottee (PW2) produced the allotment letter and receipt and confirmed surrendering the plot to the plaintiff. A survey conducted by B.O. Hussein, County Surveyor Trans-Nzoia County, pursuant to the plaintiff's request, found the defendant occupying three parcels - 1429, 1431 and 1432 - with the combined acreage of Plots 1429 and 1431 being approximately 11.05 acres, corroborating the 5-acre estimate of each parcel. The defendant's argument that he would have occupied 15 acres if he held the suitland was rejected as without basis, the court finding he was taking advantage of the suitland's position between his two plots to consolidate one block. The court framed a single issue - whether the defendant was in occupation of the suitland and, if so, whether he should be evicted - answered both in the affirmative, found the plaintiff had proved his case, ordered the eviction of the defendant and his agents from Plot No. 1431, and awarded costs of the suit to the plaintiff.

Key legal issues

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Whether the defendant was in occupation of the suitland and should be evicted

Holding

The court found the defendant was illegally occupying Plot No. 1431 and ordered his eviction.

Reasoning

Though the defendant denied occupation, a surveyor commissioned at the plaintiff's request visited the ground and found the defendant occupying three parcels: Plots 1429, 1431 (suitland) and 1432. The combined acreage of Plots 1429 and 1431 was 11.05 acres, consistent with the suitland being about 5 acres. The defendant's acreage argument was rejected as without basis. The allottee, William Kipchoge Cheptoo, testified and supported the plaintiff's claim, having surrendered the plot to the plaintiff to sustain the grandchildren.

p. 2

Legal principles established

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  • A surveyor's report properly obtained and filed may establish that a party is in illegal occupation of land notwithstanding denial by that party.

Court orders

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  1. 1.An order of eviction directing the removal of the defendant or his agents from Plot No. 1431 Milimani Settlement Scheme
  2. 2.The defendant shall pay costs of the suit to the plaintiff
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes (Plot No. 1431 Milimani Settlement Scheme)

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, "Simon Kibet Kiptum v Joseph Yano [2017] KEELC 3391 (KLR)", Case Analysis (2017). Land Case No. 12 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3391/eng@2017-01-20

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