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ELCPartially AllowedELC Case No. 61 of 2016· [2021] KEELC 1380 (KLR)

Prisca Akech Ojunga v Pamela Achieng Ochieng [2021] KEELC 1380 (KLR)

Environment and Land Court
15 October 2021
AOAntony Ombwayo
2,270 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kisumu ruled that a land swap must be in writing and signed by both owners, or it legally never happened.

What this practically means

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Executive summary

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The plaintiff, through her attorneys under a power of attorney, sued the defendant for trespass on parcel Kisumu/Dago/1300, of which she is the registered proprietor, seeking a permanent injunction, general damages and costs. She alleged that in January 2016 the defendant entered the land, began digging and constructing structures. The defendant denied trespass and counter-claimed, alleging that in 2014 her fence on her parcel was destroyed by Millicent Nyandat, that she built a permanent wall, and that on 2nd May 2016 the plaintiff's attorneys demolished columns and the perimeter wall on Kisumu/Dago/1755, and sought dismissal of the suit, a permanent injunction and general damages. At trial, the plaintiff explained that a search and efforts through the Land Registrar failed, prompting the court to order the County Land Registrar and County Surveyor to establish the plots' positions. The survey established that the two parcels, both derived from Kisumu/Dago/987, were distinct, but that an interchange of their spatial positions was recorded on the map on 26th September 2013 pursuant to a letter from the Land Registrar's office, with no supporting documents and no consent from the proprietors. The court held that the interchange was a disposition requiring a written agreement signed by both parties and their consent, none of which existed; there was therefore no valid interchange. The court found the plaintiff to be the registered proprietor of Kisumu/Dago/1300 entitled to quiet enjoyment, and the defendant a trespasser thereon. A permanent injunction was granted restraining the defendant from interfering with the plaintiff's parcel; general damages for trespass were declined for want of proof; the counter-claim was dismissed; and costs of the suit were awarded to the plaintiff.

Key legal issues

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01

Whether a valid interchange of parcels Kisumu/Dago/1300 and Kisumu/Dago/1755 took place

Holding

There was no valid interchange because there was no written agreement or consent of the parties

Reasoning

The court-ordered survey by the County Land Registrar and County Surveyor established that a note on the Preliminary Index Diagram recorded an interchange effected on 26th September 2013 pursuant to a letter from the Land Registrar's office. However, neither department could trace the underlying correspondences, no supporting documents existed, and no jointly signed consent letter or written agreement between the two proprietors was produced to confirm the interchange.

p. 3
02

Whether the defendant is a trespasser on the plaintiff's parcel Kisumu/Dago/1300

Holding

The defendant, as registered proprietor of Kisumu/Dago/1755, is a trespasser on Kisumu/Dago/1300 which belongs to the plaintiff

Reasoning

The plaintiff is the registered proprietor of Kisumu/Dago/1300 and the defendant of Kisumu/Dago/1755. Since the alleged interchange was not legally effected, the defendant occupying and fencing parcel Kisumu/Dago/1300 violates the plaintiff's registered rights. The plaintiff is therefore entitled to enjoy the rights and privileges appurtenant to her parcel and to a permanent injunction.

p. 3
03

Whether the defendant's counter-claim for injunction and damages over Kisumu/Dago/1755 succeeds

Holding

The counter-claim is dismissed

Reasoning

The defendant claimed the plaintiff's attorneys demolished a perimeter wall and columns on Kisumu/Dago/1755. The court dismissed the counter-claim on the basis that the defendant is not the registered owner of the suit property, evidently treating the suit property as the parcel in the defendant's occupation, and the demolition claim was not proved to displace the plaintiff's registered title.

p. 3

Legal principles established

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  • An interchange of parcels of land is a disposition which must be in writing and signed by both parties, and requires their consent.

Court orders

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  1. 1.Permanent injunction restraining the defendant, her servants, agents or persons purporting to derive authority from her from carrying on any activity, remaining upon, trespassing upon or in any manner interfering with the plaintiff's quiet possession, occupation and/or enjoyment of Title No. KISUMU/DAGO/1300.
  2. 2.Refusal of general damages for trespass to the plaintiff.
  3. 3.Dismissal of the defendant's counter-claim.
  4. 4.Costs of the suit awarded to the plaintiff.
Jurisdiction invoked
Article 162(2)(b) of the Constitution establishing the Environment and Land Court (implied by the court's establishment; judgment does not cite a specific provision)

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, "Prisca Akech Ojunga v Pamela Achieng Ochieng [2021] KEELC 1380 (KLR)", Case Analysis (2021). ELC Case No. 61 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1380/eng@2021-10-15

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