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ELCPartially AllowedELC Cause No. 172 of 2015· [2018] KEELC 4213 (KLR)

Samwel Makana v Charles Minaro Nyambaso 7 2 others [2018] KEELC 4213 (KLR)

Environment and Land Court
23 February 2018
MKMohammed Noor Kullow
591 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A registered Kenyan landowner with an unchallenged title deed won an injunction and eviction order against trespassers, though compensation for lost use of the land was refused.

What this practically means

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Executive summary

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The Plaintiff sued by plaint filed on 31 March 2015 claiming to be the registered owner of parcel WEST KITUTU/BOKINGOINA/2668, which he purchased from the 1st Defendant following sub-division of original title WEST KITUTU/BOKINGOINA/2667, holding a title deed issued on 29 July 2009. He alleged that the 2nd and 3rd Defendants connivingly purported to be beneficial owners of the land and illegally encroached on it, erecting an illegal structure, causing him loss and damage. He sought a permanent injunction, eviction, mesne profits and costs. The Defendants, though served, neither entered appearance nor filed defences, and the suit proceeded undefended. The Plaintiff testified, producing his title deed and a certificate of official search made before purchase showing the 1st Defendant as registered owner. He also called the 1st Defendant as his witness, who confirmed selling the land to the Plaintiff in 2009 after a prior 2002 sale agreement with the 2nd Defendant fell through when the 2nd Defendant paid a deposit but refused to pay the balance; the deposit was refunded through the area chief. The court found the Plaintiff's uncontroverted evidence established ownership, holding that a title deed is prima facie evidence of ownership, and that the case was proved on a balance of probabilities. Judgment was entered for the Plaintiff: a permanent injunction against the Defendants jointly and severally, an eviction order effective after 60 days absent voluntary handover of vacant possession, executable under section 152 of the Land Act (Revised 2016), and costs of the suit. Mesne profits were declined for want of proof.

Key legal issues

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01

Proof of ownership of the suit land

Holding

The Plaintiff, holding an unchallenged title deed issued on 29 July 2009 following transfer from the 1st Defendant, is the registered owner of WEST KITUTU/BOKINGOINA/2668

Reasoning

The Plaintiff produced a title deed and a certificate of official search conducted before purchase showing the 1st Defendant as registered owner. The 1st Defendant testified as the Plaintiff's witness confirming he sold the land to the Plaintiff after refunding the 2nd Defendant's deposit. The Defendants entered no appearance and filed no defence, so the evidence was uncontroverted. The court held the title deed to be prima facie evidence of ownership and unchallenged.

p. 2
02

Entitlement to injunction and eviction against encroaching defendants

Holding

The Defendants who encroached and put up an illegal structure on the Plaintiff's land were restrained by permanent injunction and ordered to vacate within 60 days, failing which eviction would issue under the Land Act

Reasoning

The Plaintiff pleaded that the 2nd and 3rd Defendants connivingly purported to be beneficial owners and illegally encroached, erecting a structure. With the unchallenged ownership established and the evidence uncontroverted, the court was satisfied the case was proved on a balance of probabilities and granted the permanent injunction and conditional eviction order, while refusing mesne profits for want of proof.

p. 2

Legal principles established

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  • A title deed is prima facie evidence of ownership of land
  • A plaintiff's case is proved on a balance of probabilities

Court orders

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  1. 1.A permanent injunction issued against the Defendants jointly and severally from trespassing, encroaching and interfering with the Plaintiff's peaceful and quiet enjoyment of parcel WEST KITUTU/BOKINGOINA/2668
  2. 2.An order of eviction against the Defendants from parcel WEST KITUTU/BOKINGOINA/2668 after expiry of 60 days if they fail to voluntarily hand over vacant possession; in default, eviction to be carried out in accordance with section 152 (a)(b)(e) to (i) of the Land Act (Revised 2016)
  3. 3.Costs of the suit awarded to the Plaintiff

Authorities

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Legislation

  • Land Actsection 152 (a)(b)(e) to (i)
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (Environment and Land Court Act); suit commenced by plaint

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, "Samwel Makana v Charles Minaro Nyambaso 7 2 others [2018] KEELC 4213 (KLR)", Case Analysis (2018). ELC Cause No. 172 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4213/eng@2018-02-23

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