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ELCAllowedNot stated in judgment (Plaint dated 30th May 2018)· [2020] KEELC 3298 (KLR)

Silas Kasiwa Konde v Sammy Kasiwa Konde [2020] KEELC 3298 (KLR)

Environment and Land Court
13 March 2020
JOJ.O. Olola
1,192 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By a Plaint dated 30th May 2018, the Plaintiff, Silas Kasiwa Konde, sued the Defendant, his own son, seeking a declaration that the Defendant's entry upon Portion Kilifi/Gongoni Settlement Scheme/146 was wrongful trespass, ejectment of the Defendant and demolition of his structures, a permanent injunction against re-entry, damages and costs. The Plaintiff, the registered proprietor of approximately 2.067 Ha, averred that in 2018 the Defendant broke into the land, built a semi-permanent shelter, and violently obstructed a purchaser, Andrew Kibe Kang'ethe, from fencing the land after the Plaintiff had entered a sale agreement and received a deposit to finance medical treatment. The Defendant entered appearance through Ms Tonia Mwania & Associates Advocates but filed no defence and did not participate in the trial; the matter proceeded by way of formal proof, with the Plaintiff as sole witness. The court found the title deed (issued 25th August 2011) and the Plaintiff's possession uncontroverted. It held that notwithstanding the filial relationship, the Defendant's unilateral occupation of his father's land amounted to trespass, and that any grievance about alleged disinheritance gave him no better title or authority to occupy. Judgment was entered for the Plaintiff as prayed in the Plaint, with costs to the Plaintiff. Dated, signed and delivered at Malindi on 13th March 2020 by J.O. Olola, Judge.

Key legal issues

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01

Whether the Defendant's entry onto and occupation of the suit property constituted trespass

Holding

Yes. The Plaintiff is the registered owner and was in physical possession prior to 2018; the Defendant's unilateral entry and construction of a semi-permanent house amounted to trespass despite the filial relationship.

Reasoning

The title deed issued in the Plaintiff's name on 25th August 2011 proved ownership. The Plaintiff had actual physical possession before 2018. The Defendant, the Plaintiff's son, abandoned the family homestead at Gongoni Market and unilaterally entered the suit property at Bora Bora Village, constructing a semi-permanent shelter. Though aggrieved by the proposed sale of the land, he held no better title nor authority to occupy. His testimony being uncontroverted at formal proof, the court declared him a trespasser.

p. 2

Legal principles established

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  • A registered proprietor's uncontroverted title entitles him to a declaration of trespass against even a close family member who occupies the land without consent or better title

Court orders

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  1. 1.Judgment entered for the Plaintiff against the Defendant as prayed in the Plaint
  2. 2.Plaintiff awarded the costs of the suit
Jurisdiction invoked
Original civil jurisdiction over the suit (trespass to land) as pleaded in the Plaint; no specific provision invoked in the judgment

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, "Silas Kasiwa Konde v Sammy Kasiwa Konde [2020] KEELC 3298 (KLR)", Case Analysis (2020). Not stated in judgment (Plaint dated 30th May 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3298/eng@2020-03-13

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