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ELCDismissedCase No 553 of 2015· [2019] KEELC 4195 (KLR)

James Charaha Otore v Jeremiah Masese [2019] KEELC 4195 (KLR)

Environment and Land Court
20 March 2019
JMJ. M. Mutungi
1,159 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 refused to evict a landowner because the plaintiff could not prove the defendant actually occupied the disputed portion of land.

What this practically means

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Executive summary

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The plaintiff sued alleging trespass and encroachment by the defendant onto his land parcel Nyansiongo Settlement Scheme/149, claiming appropriation of approximately 1½ acres. The defendant denied trespass, asserting occupation of his own parcel Nyansiongo Settlement Scheme/527. Recognising a boundary dispute, the court on 6th June 2016 referred the matter to the Land Registrar Nyamira to fix the boundary between the two parcels. The land registrar and county surveyor filed reports dated 21st and 30th March 2017, which the court adopted as judgment by a ruling, ordering the defendant to vacate the disputed portion within 30 days if found in occupation, failing which eviction would issue. The plaintiff then moved by Notice of Motion dated 8th February 2018, under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 22 Rule 82 of the Civil Procedure Rules, seeking an eviction order from approximately 0.58Ha of parcel 149, alleging the defendant had intensified unlawful activities including destroying trees and creating an access road. The defendant denied occupation, noting the reports attributed encroachment to the owner of land parcel II. The court held the reports were silent on the defendant's occupation of the portion marked 'XYWZ', and that it was incumbent on the plaintiff to prove occupation, which he failed to do. The application was dismissed with costs to the defendant.

Key legal issues

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01

Whether an eviction order could issue against the defendant

Holding

The eviction order was refused because the plaintiff failed to prove the defendant occupied the 0.58Ha portion of parcel 149

Reasoning

The land registrar's and county surveyor's reports, which had been adopted as judgment of the court, fixed the boundary between parcels 527 and 149 but were silent on whether the defendant occupied the portion marked 'XYWZ'. The reports affirmatively stated that the encroachment on parcel 149 was by the owner of land parcel II. The burden was on the plaintiff to demonstrate the defendant's occupation, which he failed to discharge.

p. 2

Legal principles established

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  • The party seeking an eviction order bears the burden of demonstrating, with tangible evidence, that the party to be evicted is in occupation or possession of the land

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 8th February 2018 was dismissed
  2. 2.Costs of the application awarded to the defendant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 22 Rule 82
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 22 Rule 82 of the Civil Procedure Rules (application); original civil jurisdiction over land dispute

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, "James Charaha Otore v Jeremiah Masese [2019] KEELC 4195 (KLR)", Case Analysis (2019). Case No 553 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4195/eng@2019-03-20

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