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ELCDismissedNot stated in the judgment as provided· [2020] KEELC 1522 (KLR)

Mohamed Anwar Adirahman Haji Abass v Memum Abdullahi Mohamed [2020] KEELC 1522 (KLR)

Environment and Land Court
30 July 2020
CYC.K. Yano
1,900 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiff, the registered lessee of LR No. 28290 (4.905 hectares) near Mariakani Trading Centre, Kilifi, sued for a permanent injunction and a mandatory injunction compelling the defendant to demolish a perimeter wall allegedly constructed in October 2010 on a 2-acre portion of his land. The plaintiff pleaded he was a bona fide purchaser from Kesi Ali Mwatsau on 12th January 2010. The defendant denied trespass, asserting ownership of Mariakani/Kawala 'B'/30 (2 acres, per her evidence, though the judgment records 1.5 hectares) within an adjudication area, that she built the wall on her own land from 2009 with Town Council of Mariakani approval, and that the plaintiff's title was illegally procured and had been revoked by the National Land Commission via Gazette Notice No. 5022 of 18th July 2014. Her husband (DW2) testified he purchased the plot and registered it in her name. The plaintiff's counsel submitted the National Land Commission acted ultra vires and without hearing him, usurping the court's powers; the defendant's counsel relied on Munyu Maina v Hiram Maina (2013) eKLR. The court framed two issues: whether trespass was proved, and entitlement to reliefs. It found both parties held titles, and that the plaintiff failed to adduce survey evidence locating the wall on his parcel; under Section 107 of the Evidence Act the burden lay on him. Trespass was not proved, the suit failed on a balance of probabilities, and the plaintiff's suit was dismissed with costs on 30th July 2020.

Key legal issues

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01

Whether the plaintiff proved trespass on LR No. 28290

Holding

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

Reasoning

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.

p. 2
02

Whether the plaintiff was entitled to the reliefs sought

Holding

No; the claim failed on a balance of probabilities and was dismissed with costs

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The plaintiff's suit is dismissed with costs

Authorities

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Legislation

  • Evidence Act, Cap 80 Laws of KenyaSection 107

Cases cited (1)

  • Munyu Maina v Hiram Maina
    (2013) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim concerning title to and trespass on land

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, "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.