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ELCAllowedELC Case No. 72 of 2017 (Formerly Machakos ELC No. 235 of 2010)· [2019] KEELC 3651 (KLR)

Ol Kasasi Limited v Moses Kirruti Lempaso (Environment & Land Case 72 of 2017) [2019] KEELC 3651 (KLR)

Environment and Land Court
24 April 2019
COChristine Ochieng
1,360 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kajiado confirmed that a registered landowner with valid titles can permanently bar neighbours from trespassing, even without a defence being filed.

What this practically means

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Executive summary

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The Plaintiff, Ol Kasasi Limited, sued the Defendant, Moses Kirruti Lempaso, by plaint dated 8 November 2010 seeking a permanent injunction restraining the Defendant and those claiming through him from entering, trespassing on or interfering with four parcels of land, namely Kajiado/Kitengela/27302, 27303, 27304 and 27305, together with costs and any other relief. The Defendant was duly served on 29 November 2010 and entered appearance but never filed a defence; interlocutory judgment was entered on 4 February 2015 and the suit proceeded to formal proof, at which the Plaintiff called one witness. The witness testified that the Plaintiff, a registered company, owned the four parcels measuring about 50 acres, that the Defendant owned the adjacent parcel Kajiado/Kitengela/12922, and that the Defendant had removed boundary beacons, blocked the Plaintiff's directors and surveyor from replacing them, confronted them with armed youths on multiple occasions, threatened violence, attempted to fraudulently sell the land, and threatened to graze cattle on it. The Plaintiff produced its certificates of title and certificate of incorporation, and the evidence was uncontroverted. Framing two issues - whether to grant the injunction, and costs - the court relied on sections 25 and 26 of the Land Registration Act on indefeasibility of title and followed Ahmed Ibrahim Suleiman v Noor Khamis Surur (2013) eKLR, holding the certificates prima facie evidence of ownership and the Plaintiff the indefeasible owner. Judgment was entered for the Plaintiff with a permanent injunction as prayed and costs awarded to the Plaintiff. Judgment was signed and delivered at Kajiado on 24 April 2019 by Christine Ochieng J.

Key legal issues

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01

Whether the Defendant and those claiming through him should be permanently restrained from trespassing on or interfering with the Plaintiff's parcels of land

Holding

Yes. The Defendant filed no defence despite due service, and the Plaintiff's uncontroverted testimony and certificates of title established ownership and trespass; the Plaintiff proved its case on a balance of probability and a permanent injunction was issued.

Reasoning

The Plaintiff produced certificates of title for the four parcels and testified that the Defendant, owner of the adjacent parcel, removed beacons, blocked access with armed youths, threatened violence and attempted to sell the land. Relying on sections 25 and 26 of the Land Registration Act and the Suleiman case, the court held the titles prima facie evidence of ownership, the Plaintiff indefeasible owner, and the evidence uncontroverted, warranting a permanent injunction and costs.

p. 2

Legal principles established

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  • A registered proprietor whose certificate of title is unchallenged is the indefeasible owner of the land and entitled to all privileges and appurtenances free from all other interests and claims whatsoever.
  • A party holding title to a parcel of land is entitled to the protection of the law.

Court orders

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  1. 1.A permanent injunction restraining the Defendant, his employees, servants or agents or any person claiming through or acting through or under him from entering, trespassing or interfering in any way with the land parcels L.R Nos. Kajiado/Kitengela/27302, 27303, 27304 and 27305 or with the Plaintiff's employees, servants or agents carrying on any work therein
  2. 2.Costs of the suit awarded to the Plaintiff

Authorities

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Legislation

  • Land Registration ActSection 25
  • Land Registration ActSection 26

Cases cited (1)

  • Ahmed Ibrahim Suleiman and another –vs- Noor Khamis Surur
    (2013) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to title to and occupation of land (Article 162(2)(b) land and environment jurisdiction, pursuant to the 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, "Ol Kasasi Limited v Moses Kirruti Lempaso (Environment & Land Case 72 of 2017) [2019] KEELC 3651 (KLR)", Case Analysis (2019). ELC Case No. 72 of 2017 (Formerly Machakos ELC No. 235 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3651/eng@2019-04-24

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