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ELCPartially AllowedNot stated in the excerpt· [2022] KEELC 270 (KLR)
Simon Okumu Okinda & another v Jonathan Robi Kofia [2022] KEELC 270 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#By a plaint dated 26th October 2016, the Plaintiffs, joint proprietors of L.R No. Bukhayo/Kisoko/1774 measuring 2.34Ha, sued their neighbour alleging that he had encroached on approximately 1¾ acres on the southern part of their parcel and annexed it to his own parcel. They sought a permanent injunction restraining trespass and interference with their possession, together with costs. The Defendant was served but did not enter appearance or file a defence; interlocutory judgment was entered on 3rd February 2017 and the matter proceeded by formal proof, with the 1st Plaintiff testifying as sole witness. He produced the title deed, green card, official search, a Chief's letter and a County Surveyor's report dated 25th April 2019. The report by Busia County Surveyor Julius Mulusa found an encroachment of approximately 0.61ha on parcel 1774 from the neighbouring parcel, possibly occasioned during a 2019 sub-division of parcel Bukhayo/Kisoko/1166. Applying section 18(3) of the Land Registration Act on evidence of boundaries, and noting that the Defendant had not countered the Plaintiffs' evidence, the court held that encroachment was established. Judgment was entered as prayed: a permanent injunction restraining the Defendant from encroaching on or interfering with the 0.61ha portion, an order for surrender of vacant possession within 60 days with an eviction order to issue in default, and the Plaintiffs were awarded half the costs of the suit. Judgment delivered at Busia on 21st April 2022 by A. Omollo, J.
Key legal issues
#01
Whether encroachment on the Plaintiffs' parcel was proved
Holding
Encroachment of approximately 0.61ha was established on the basis of the uncontroverted County Surveyor's report
Reasoning
The suit was undefended and proceeded by formal proof. The only question was whether the Plaintiffs demonstrated encroachment. The Busia County Surveyor visited both parcels and reported an encroachment of approximately 0.61ha, possibly occurring during sub-division of parcel 1166. The court treated the unchallenged expert report as sufficient proof of the claim.
p. 2
Legal principles established
#- In an undefended suit, uncontroverted expert evidence of a survey report suffices to establish encroachment
- Under section 18(3) of the Land Registration Act, the Registrar may in proceedings concerning a parcel receive evidence as to boundaries where boundaries are not fixed
Court orders
#- 1.Permanent injunction restraining the Defendant, his agents, servants, employees and persons acting through him from encroaching on and/or interfering with the Plaintiffs' possession of land parcel BUKHAYO/KISOKO/1774, particularly the portion measuring 0.61ha identified by the County Surveyor
- 2.Defendant to surrender vacant possession of the disputed portion within 60 days, in default an eviction order to issue to remove his structures, trees or plants from the disputed portion
- 3.Plaintiffs awarded half costs of the suit
- Jurisdiction invoked
- Original civil suit under the Land Registration Act, No. 12 of 2012 (section 18(3)) and the court's inherent jurisdiction over land disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Okumu Okinda & another v Jonathan Robi Kofia [2022] KEELC 270 (KLR)", Case Analysis (2022). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/270/eng@2022-04-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.