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ELCPartially Allowed· [2018] KEELC 1444 (KLR)

Reuben Milimo Akolo v Joseph Ojuna Meshack [2018] KEELC 1444 (KLR)

Environment and Land Court
19 September 2018
MNMwangi Njoroge
1,093 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court kept a buyer in occupation of disputed land, ruling that unproven trespass claims cannot justify a neighbour fencing it off first.

What this practically means

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Executive summary

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This is a ruling by Mwangi Njoroge, Judge, of the Environment and Land Court at Kitale on a notice of motion dated 16 April 2018 brought by the plaintiff, in person, under Sections 3, 3(a) and Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules. The plaintiff sought an injunction restraining the defendant from interfering with plot Kiminini/Kinyoro Block 10/Kareu/12, an order for police enforcement, and an order prohibiting the defendant from using the Deputy County Commissioner and other local administrators to harass him. The plaintiff claimed he bought 1½ points of an acre from the defendant for Kshs.165,000/= on 3 January 2014, took possession and developed the land with trees and a house, but was later coerced on 29 January 2018, through the Deputy County Commissioner, into signing a second agreement increasing the balance to Kshs.95,650/=. The defendant replied that the plaintiff had trespassed onto his half-point portion in April 2018 and had breached a new agreement of 29 January 2018, prompting him to fence off the portion. The court observed there may have been a mistake over the size of land transacted, but found the plaintiff had been in occupation before the alleged April 2018 trespass, so the trespass claim could not be taken as proved at that stage. The court granted an order restraining the defendant from interfering with the suit land, directed that it remain in the plaintiff's hands pending hearing and determination of the suit, and ordered maintenance of the status quo in all other respects. The ruling was delivered on 19 September 2018.

Key legal issues

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01

Whether an interim injunction pending determination of the suit should issue

Holding

The court ordered that the suit land remain in the hands of the plaintiff and that the defendant not interfere with it pending hearing and determination of the suit

Reasoning

The court found evidence that the plaintiff had been on the suit land for a while: trees in photographs filed with the plaint indicated planting before April 2018, the date the defendant alleged the trespass occurred. The defendant's self-help fencing of the portion was viewed as an attempt to take what was already in the plaintiff's hands without any prior legal process. Allegations of trespass remained to be proved at the trial.

p. 2

Legal principles established

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  • At an interlocutory stage, an allegation of trespass that is yet to be proved cannot be taken as the truth where the party claiming it is not in possession

Court orders

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  1. 1.An order that the defendant does not interfere with the suit land Kiminini/Kinyoro Block 10/Kareu/12 in any manner pending the hearing and determination of the suit
  2. 2.The suit land to remain in the hands of the plaintiff pending the hearing and determination of the suit
  3. 3.The status quo in all other respects to be maintained by both parties

Authorities

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Legislation

  • Civil Procedure RulesSections 3, 3(a); Order 40 Rules 1, 2, 3 and 4
Jurisdiction invoked
Sections 3, 3(a) and Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules

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, "Reuben Milimo Akolo v Joseph Ojuna Meshack [2018] KEELC 1444 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1444/eng@2018-09-19

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