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ELCPartially AllowedELC No. 59 of 2017· [2018] KEELC 2912 (KLR)

John Ndeda v David Mukangula Saizi [2018] KEELC 2912 (KLR)

Environment and Land Court (High Court of Kenya), Busia
20 June 2018
AKA. K. Kaniaru
663 words in judgment
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The bottom line

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A Busia court evicted a man who fenced part of his neighbour's land, but gave him three months to leave peacefully.

What this practically means

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Executive summary

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The Plaintiff, John Ndeda, sued the Defendant, David Mukangula Saizi, by plaint filed on 20 March 2017 and amended on 8 March 2018, alleging that the Defendant had annexed and fenced a portion of the Plaintiff's land parcel BUKHAYO/BUGENGI/2084 and incorporated it into his neighbouring parcel BUKHAYO/BUGENGI/12077. The Plaintiff sued in his capacity as administrator of the estate of his late father, Eliseyo N. Mubweka, and pleaded that despite a report to the County Land Registrar, who visited the site and pointed out the correct boundary, the Defendant persisted in the encroachment. He sought eviction, a permanent restraint against trespass or interference with his quiet enjoyment, costs, and any other relief. The Defendant was served as evidenced by an affidavit of service but neither entered appearance nor filed a defence, so the suit proceeded undefended. At the hearing the Plaintiff testified and produced letters of administration, a confirmed grant, the green card and a search certificate; PW2, David Mageni Ibu, a neighbour to both parties, corroborated the encroachment and destruction of the boundary. Written submissions merely sought the prayers. The court, Kaniaru J, found the claim simple and straightforward and proved on a balance of probability, granting prayers (i), (ii) and (iii) of the plaint. However, it conditioned eviction on the Defendant being given at least three months' notice to vacate and remove his property voluntarily, failing which forceful eviction would follow. Judgment was delivered at Busia on 20 June 2018 with costs to the Plaintiff.

Key legal issues

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01

Proof of encroachment on registered land

Holding

The Plaintiff proved, through his testimony, a green card, a search certificate and an independent neighbour's evidence, that the Defendant annexed part of the suit land

Reasoning

The Plaintiff testified as PW1 and produced letters of administration and a confirmed grant establishing his capacity to sue, a green card and a search certificate proving ownership of the suit land. PW2, a neighbour to both parties, corroborated that the Defendant annexed a portion of the suit land and destroyed the boundary. The court found the suit simple and straightforward with nothing standing in the way of the orders sought, holding the claim proved on a balance of probability despite the Defendant's non-participation.

p. 2
02

Mode of executing the eviction order

Holding

Eviction was granted but conditioned on prior notice of at least three months to enable the Defendant to vacate and remove his property voluntarily

Reasoning

Although the court found the Plaintiff entitled to eviction, it tempered the remedy by requiring that the Defendant be given at least three months' notice to vacate the portion he occupied and remove all his property of his own volition, failing which forceful eviction would follow. This reflects a measured exercise of discretion in granting the remedy of eviction against a defaulting defendant.

p. 2

Legal principles established

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  • A plaintiff's title and claim of boundary encroachment proved on a balance of probability entitles him to eviction and injunctive relief, even where the defendant does not enter appearance

Court orders

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  1. 1.The Defendant be evicted from the suit land (prayer (i) granted)
  2. 2.The Defendant, his agents, workers, personal representatives and/or assignees be restrained from entering, trespassing or interfering with the Plaintiff's quiet enjoyment of the suit land (prayer (ii) granted)
  3. 3.Costs of the suit to the Plaintiff (prayer (iii) granted)
  4. 4.Eviction to be effected only after the Defendant is given notice of at least three (3) months to vacate and remove his things voluntarily, failing which forceful eviction may follow
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (Environment and Land Court Act)

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, "John Ndeda v David Mukangula Saizi [2018] KEELC 2912 (KLR)", Case Analysis (2018). ELC No. 59 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2912/eng@2018-06-20

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