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ELCPartially AllowedELC NO. 73 OF 2017· [2018] KEELC 3601 (KLR)

Filis Atemi Wandera v Noah Imanza Kidiga & another [2018] KEELC 3601 (KLR)

High Court of Kenya
24 April 2018
810 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 evicted two men from land they occupied, but denied the owner compensation because she provided no evidence of her losses.

What this practically means

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Executive summary

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The Plaintiff sued the two Defendants by plaint dated 3/4/2017 (amended 15/11/2017), alleging trespass onto and occupation of land parcel BUKHAYO/EBUSIBWABO/3031, of which she is the registered owner, having inherited it from her late mother. She sought eviction with OCS assistance, a permanent injunction, damages for trespass, costs and any further relief. Although served on 6/4/2017 and again on 17/8/2017 with the hearing date, the Defendants neither entered appearance nor filed a defence, and the matter proceeded exparte on 8/11/2017. The Plaintiff testified as PW1, producing her ID card, title deed, her late mother's title deed, a confirmed grant from her mother's estate and demand letters. PW2, the area village elder, testified that the Plaintiff's mother had bought the land from one Philip Ongure, that the 1st Defendant later misled a surveyor into surveying the mother's land as his, and that a local complaint escalated through the chief to a court decision in the mother's favour, after which she obtained title. The court found the suit uncontroverted and held that the Plaintiff proved ownership and the Defendants' lack of any right to remain, on a balance of probabilities. However, the claim for damages failed for want of evidence, and nuisance was abandoned at hearing. The court granted eviction - with 90 days notice for the Defendants to vacate, failing which the OCS was to assist - permanent injunction, and costs.

Key legal issues

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01

Ownership of the disputed land

Holding

The Plaintiff, as registered owner having inherited the parcel from her late mother, proved ownership

Reasoning

The Plaintiff testified as PW1 and produced her ID card, title deed, her late mother's title deed, a confirmed grant relating to her mother's estate, and demand letters. The evidence was uncontroverted as the Defendants were served but neither entered appearance nor filed a defence. The court found she demonstrated well that she is the owner of the disputed land.

p. 2
02

Trespass by the Defendants

Holding

The Defendants were found to be on the land with no right to be there

Reasoning

PW2, the village elder, testified that the Plaintiff's mother had purchased the land from Philip Ongure and that the 1st Defendant later misled a surveyor so that the mother's land was surveyed as his. A local complaint culminated in a court decision that the land belonged to the Plaintiff's mother, who then obtained title. The Defendants nonetheless remained in occupation, establishing trespass.

p. 2
03

Damages for trespass

Holding

The prayer for damages was refused for lack of evidential proof

Reasoning

Although damages for trespass were pleaded, the Plaintiff did not lead any evidence quantifying loss and her counsel's submissions did not address damages. The court could therefore only grant eviction, OCS assistance, permanent injunction and costs.

p. 2

Legal principles established

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  • A plaintiff in an uncontroverted suit who proves ownership of land and the defendant's occupation without right is entitled to eviction and injunction on a balance of probabilities

Court orders

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  1. 1.Order of eviction of the Defendants from land parcel BUKHAYO/EBUSIBWABO/3031, with 90 days notice for the Defendants to remove themselves
  2. 2.If the Defendants fail to comply, eviction to be carried out with the assistance of the area O.C.S.
  3. 3.Permanent injunction restraining the Defendants, their agents, servants, family members and persons claiming through them from trespassing on, ploughing or using the Plaintiff's land
  4. 4.Costs of the suit to the Plaintiff
Jurisdiction invoked
Original civil jurisdiction of the High Court (Environment and Land Division) over disputes relating to land

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, "Filis Atemi Wandera v Noah Imanza Kidiga & another [2018] KEELC 3601 (KLR)", Case Analysis (2018). ELC NO. 73 OF 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3601/eng@2018-04-24

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