Mohamed Anwar Adirahman Haji Abass v Memum Abdullahi Mohamed [2020] KEELC 1522 (KLR)
The bottom line
#A Kenyan landowner lost his trespass case because he had no survey report proving the neighbour's wall sat on his land.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved trespass on LR No. 28290
Trespass was not proved; the plaintiff failed to adduce survey evidence locating the wall on his parcel, and the burden of proof lay on him
Both parties held title documents for their respective parcels. The defendant denied that the wall was on the plaintiff's land and pleaded it stood on hers. In the absence of maps, plans or a survey report showing the boundary dimensions of the two plots, the court could not determine where the wall stood. Section 107 of the Evidence Act placed the burden on the plaintiff, which he did not discharge.
Whether the plaintiff was entitled to the reliefs sought
No; the claim failed on a balance of probabilities and was dismissed with costs
Having failed to prove trespass, the plaintiff could not sustain the declaratory and mandatory injunctive reliefs sought. The competing titles (LR No. 28290 and Mariakani/Kawala 'B'/30) and the pending questions of revocation by the National Land Commission meant the plaintiff's claim could not succeed as pleaded.
Legal principles established
#- A party asserting trespass must avail sufficient evidence, such as a survey report or maps, to show that the impugned structure is on their parcel of land
- The burden of proof lies on the party who desires a court to give judgment dependent on facts he asserts
Court orders
#- 1.The plaintiff's suit is dismissed with costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a claim concerning title to and trespass on land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Anwar Adirahman Haji Abass v Memum Abdullahi Mohamed [2020] KEELC 1522 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1522/eng@2020-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.