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ELCPartially AllowedELC No. 358 of 2014· [2021] KEELC 842 (KLR)

Hassan Kipkemboi Ngeny v Julius Kipyego Maiyo [2021] KEELC 842 (KLR)

Environment and Land Court
18 November 2021
EOE.O. Obaga
1,326 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Eldoret court upheld a landowner's title, ordered eviction of a trespasser, but refused compensation because the owner never proved actual losses.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant seeking declarations of trespass, eviction, demolition of structures, re-survey and replacement of beacons, a permanent injunction, damages and mesne profits in respect of land parcel NANDI/NDURIO/1019. The Defendant, after initially allowing an ex-parte judgment to be set aside by consent, filed a defence and counterclaim claiming to be the lawful owner and seeking cancellation of the Plaintiff's title and registration in his own name. His advocate ceased acting for him, and after due service the Defendant failed to attend the hearing, which proceeded ex-parte on 30th September 2021. The Plaintiff testified that he purchased the suit property from Barnaba A. Kichwen for Kshs.675,000/= under a 2012 sale agreement, obtained Land Control Board consent, and was issued title in November 2012. PW2, the vendor, confirmed the sale; PW3 gave the history of the parcel as a subdivision of NANDI/NDURIO/117 and testified that the Defendant resided on the neighbouring parcel 118 and had family land elsewhere. Evidence showed the Defendant's elder brother had sued the vendor in ELC 992 of 2012 claiming the parent parcel as family property, and that suit was dismissed in June 2013. The court found the Plaintiff's title proved on a balance of probabilities, held the Defendant's adverse possession claim baseless, and dismissed the counterclaim for want of evidence. The suit was allowed in terms of prayers (a), (b), (bb), (c) and (e) of the amended plaint; mesne profits were declined for want of proof. Costs were awarded to the Plaintiff.

Key legal issues

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01

Whether the Plaintiff proved title to the suit property against the Defendant

Holding

Yes - the Plaintiff proved the sale agreement, Land Control Board consent, registration and title, establishing his case on a balance of probabilities

Reasoning

The Plaintiff produced a sale agreement showing payment of Kshs.675,000/=, a green card confirming the vendor's registration, evidence of Land Control Board consent, and title issued in his name. PW2, the vendor, confirmed the sale, and PW3 gave the history of the parcel. The uncontroverted evidence proved the Plaintiff's proprietary interest on a balance of probabilities.

p. 3
02

Whether the Defendant's claim of adverse possession in the counterclaim had merit

Holding

No - the claim had no basis; the Defendant's elder brother's earlier suit against the vendor over the parent parcel was dismissed, and the Defendant did not lead evidence on the counterclaim

Reasoning

The Defendant pleaded he had been on the land since birth, but evidence showed his elder brother had litigated a family claim over the parent parcel NANDI/NDURIO/117 against the vendor in ELC 992 of 2012, which was dismissed on 20th June 2013. The court found the Defendant was exploiting a boundary dispute. Having ceased to be represented and having failed to appear, the Defendant led no evidence on the counterclaim, which was dismissed.

p. 2

Legal principles established

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  • A party who is given a second chance to prove their case but fails to appear and urge it bears the consequences of that failure
  • Mesne profits must be specifically proved; they are not automatically awarded upon a finding of trespass

Court orders

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  1. 1.Declaration that the Defendant and his servants and/or agents are trespassers on Title Number NANDI/NDURIO/1019
  2. 2.Order of eviction of the Defendant, his servants and agents, with an order of demolition of structures on Title Number NANDI/NDURIO/1019
  3. 3.Order directing the Land Registrar, Nandi County to cause re-survey and replacement of beacons on Title Number NANDI/NDURIO/1019
  4. 4.Permanent injunction restraining the Defendant, his servants and/or agents from re-entering, occupying or interfering with the Plaintiff's parcel of land
  5. 5.Costs of the suit to the Plaintiff
  6. 6.Dismissal of the Defendant's counterclaim with costs to the Plaintiff

Authorities

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Cases cited (1)

  • ELC 992 of 2012 (Formerly HCCC No.201 of 2012) - Defendant's elder brother v Barnaba Kichwen
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to title to and occupation of land (Article 162(2)(b) 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, "Hassan Kipkemboi Ngeny v Julius Kipyego Maiyo [2021] KEELC 842 (KLR)", Case Analysis (2021). ELC No. 358 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/842/eng@2021-11-18

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