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ELCPartially AllowedELC Cause No. 308 of 2017· [2018] KEELC 3956 (KLR)

Bhavin Ashwin Gudka v Daniel Ole Kanasa [2018] KEELC 3956 (KLR)

Environment and Land Court
2 March 2018
MKMohammed Noor Kullow
593 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Narok court confirmed a title holder's ownership of disputed Trans Mara land, ordered removal of a caution, and gave the occupant 90 days to vacate.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant seeking a declaration that he is the registered owner of LR No. Trans Mara/Moita/111 (approximately 10.49 hectares), an order of eviction, removal of a caution registered by the Defendant on 19th March 2015, damages for trespass and a permanent injunction. The Plaintiff averred he purchased the land from Nuuya Ole Kuyaa and that the Defendant, claiming an interest as a licensee, registered a caution, entered the land and began cultivating it. The Defendant did not enter appearance or file a defence, and the suit proceeded undefended. At the hearing the Plaintiff testified through Omego Jacob Oboi, his property manager holding a Power of Attorney, who produced a sale agreement, a certificate of title and a certificate of official search showing the Plaintiff as registered owner, as well as evidence of the caution. The court found the testimony uncontroverted and unchallenged and held that the Plaintiff had proved his case on a balance of probability, that the Defendant's intrusion without consent constituted the tort of trespass, and that the Plaintiff was entitled to the prayers sought. However, no evidence was produced to enable assessment of damages for trespass, and no damages were awarded; a permanent injunction likewise does not appear in the final orders. Judgment was entered for the Plaintiff in the form of a declaration of ownership, an order removing the caution, an order for the Defendant to vacate within 90 days failing which eviction would issue under section 152 of the Land Act, and costs of the suit.

Key legal issues

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01

Proof of ownership of the suit land

Holding

The Plaintiff proved ownership by production of a certificate of title and official search showing him as registered owner

Reasoning

The Plaintiff's attorney produced a sale agreement, a certificate of title and a certificate of official search showing the Plaintiff as the registered owner. The Defendant did not enter appearance or file a defence, so the evidence was uncontroverted. The court found the title and search corroborated the claim of ownership.

p. 1
02

Trespass and entitlement to remedies

Holding

The Defendant's entry and cultivation without consent constituted trespass, entitling the Plaintiff to declaration, removal of caution and eviction

Reasoning

The Defendant registered a caution claiming to be a licensee and entered and cultivated the land without the Plaintiff's consent. The court found all ingredients of the tort of trespass proved on a balance of probability and held the Plaintiff entitled to the prayers sought, except damages which were not proved.

p. 1

Legal principles established

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  • Trespass is established by intrusion onto land without consent or authority
  • Uncontroverted testimony in an undefended suit proves the case on a balance of probability

Court orders

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  1. 1.A declaration that the Plaintiff is the registered owner of LR No. Trans Mara/Moita/111
  2. 2.An order of removal of the caution registered by the Defendant on the land on 19th March, 2015
  3. 3.The Defendant to voluntarily move out of the suit land within 90 days of the judgment, in default an order of eviction to issue in strict compliance with section 152(a),(b)(i) of the Land Act (Revised 2016)
  4. 4.Costs of the suit to the Plaintiff

Authorities

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Legislation

  • Land Actsection 152(a),(b)(i)
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (title, caution, trespass and eviction under the Land 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, "Bhavin Ashwin Gudka v Daniel Ole Kanasa [2018] KEELC 3956 (KLR)", Case Analysis (2018). ELC Cause No. 308 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3956/eng@2018-03-02

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