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ELCAllowedNot stated in judgment (suit re: land parcel No. 5777/3 Chepkorok Farm)· [2019] KEELC 759 (KLR)

Lawrence P.B. Odunga v Thomas Kandete & 3 others [2019] KEELC 759 (KLR)

Environment and Land Court (first-instance suit)
19 November 2019
MNMwangi Njoroge
1,667 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kitale court evicted families who occupied land they couldn't prove they owned, confirming that documented purchase and possession win over mere occupation.

What this practically means

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Executive summary

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The plaintiff, by amended plaint dated 2nd November 2017, sought a declaration that 2 acres comprised in land parcel No. 5777/3 Chepkorok Farm, Trans Nzoia County, belong to him, an order of eviction of the defendants, a permanent injunction against trespass, and costs. He testified that he bought the 2 acres in 1986 from Selina Nakhumicha for Kshs. 26,000/- under a written agreement (P.Exh.1), took possession and planted sisal on the boundaries, but on returning from Bungoma found the defendants in occupation of about 1.7 acres, leaving him only 0.3 acres. His wife (PW-2), the vendor's son (PW-3) and an introducer (PW-4) corroborated him. The defendants denied knowledge of the plaintiff's ownership, asserting no titles had been issued in Chepkorok Farm; the 2nd defendant admitted occupation since 2008 but tendered no documents supporting his acquisition; the 3rd defendant could not be traced. The court, relying on Clerk & Lindsell on Torts, defined trespass and placed the onus on the plaintiff to prove ownership and unlawful invasion. It found the purchase proved and unchallenged, held the defendants to be trespassers, and entered judgment for the plaintiff: a declaration of entitlement to the 2 acres, eviction of the defendants, a permanent injunction against trespass, and costs of the suit. Judgment was delivered at Kitale on 19th November 2019 by Mwangi Njoroge, Judge.

Key legal issues

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01

Ownership of the suit land

Holding

The court was satisfied the plaintiff bought the suit land from Selina Nakhumicha in 1986, supported by the agreement and her son's testimony.

Reasoning

The plaintiff tendered the sale agreement as P.Exh.1, corroborated by PW-3, son of the vendor, who witnessed payment of Kshs. 26,000/-. PW-2 and PW-4 also corroborated the purchase and possession (planting sisal boundaries). The defendants did not deny the plaintiff's ownership or claim ownership themselves; they only said no titles had been issued in the farm.

p. 2
02

Trespass by the defendants

Holding

The defendants unlawfully entered and occupied the plaintiff's land and are trespassers.

Reasoning

The plaintiff's evidence that the defendants entered forcefully, planted crops and built semi-permanent structures was unchallenged. The defendants did not tender documents showing how they obtained the land. Unlawful entry without the plaintiff's permission made them trespassers, entitling the plaintiff to eviction and a permanent injunction.

p. 2

Legal principles established

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  • Trespass is any unjustifiable intrusion by one person upon the land in the possession of another.
  • The burden lies on the plaintiff in trespass to prove ownership of the suit property and that the defendant invaded it without justifiable cause.
  • An owner is entitled to exclusive use, possession and enjoyment of the property without interference by third parties.

Court orders

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  1. 1.A declaration that the plaintiff is entitled to the 2 acres comprised in land parcel No. 5777/3 CHEPKOROK to the exclusion of the defendants
  2. 2.An order of eviction of the defendants from the 2 acres comprised in land parcel no. 5777/3 CHEPKOROK FARM
  3. 3.A permanent injunction restraining the defendants, their agents and/or servants and/or anybody claiming through them from trespassing upon the plaintiff's said 2 acres
  4. 4.The plaintiff shall have the costs of the suit
Jurisdiction invoked
Original civil jurisdiction over a claim in trespass to land (amended plaint dated 2nd November 2017)

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, "Lawrence P.B. Odunga v Thomas Kandete & 3 others [2019] KEELC 759 (KLR)", Case Analysis (2019). Not stated in judgment (suit re: land parcel No. 5777/3 Chepkorok Farm). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/759/eng@2019-11-19

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