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ELCPartially AllowedNot stated in the judgment· [2022] KEELC 1087 (KLR)

Kennedy Obuchi Nyangen v Uasin Gishu County Government [2022] KEELC 1087 (KLR)

Environment and Land Court
2 March 2022
SKS.M. KIBUNJA
2,876 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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An Eldoret landowner proved his title and trespass against the municipality, won a permanent injunction, and recovered his costs.

What this practically means

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Executive summary

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The Plaintiff sued claiming to be the registered lessee of Eldoret Municipality/Block 9/3107, having bought the land in 2004 and been registered on 15 June 2006. In October 2013 unknown persons, on inquiry said to be sent by the Defendant municipality, invaded the property, dug holes and erected a fence, denying him access to his dwelling house. He sought a declaration of ownership, a permanent injunction against trespass and interference, and costs. The Defendant filed a defence of bare denials and never called any witnesses, having failed to comply with directions to file statements and documents, and did not attend subsequent mentions. The court first addressed the Plaintiff's reliance on a supporting affidavit instead of a witness statement under Order 3 Rule 2 of the Civil Procedure Rules. Applying Article 159(2)(d) of the Constitution and the overriding objective, and following Alexander Khamasi Mulimi and the Salat decision, it held the affidavit was a proper substitute as it raised the whole case and attached the documents, causing no prejudice to the Defendant. On the evidence, the certificate of lease, official search and rates receipts established the Plaintiff as registered proprietor, with the title unimpeached under section 26 of the Land Registration Act and protected by Article 40. Trespass by the Defendant's agents was proved on a balance of probabilities, entitling the Plaintiff to a permanent injunction, though damages were unavailable as not pleaded. The court declared the Plaintiff owner, ordered the Defendant to vacate within thirty days, issued the permanent injunction, and awarded the Plaintiff costs under section 27 of the Civil Procedure Act. Judgment was delivered virtually on 2 March 2022 by S.M. Kibunja, J, with both parties and counsel absent.

Key legal issues

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01

Propriety of relying on a supporting affidavit in place of a witness statement

Holding

An affidavit may substitute for a witness statement where it raises all averments and causes no prejudice.

Reasoning

The court analysed Order 3 Rule 2 of the Civil Procedure Rules and found the Rules ambiguous on failure to file witness statements. It held that witness statements merely indicate evidence to be raised, while affidavits are made under oath with penal consequences and attach documents. Article 159(2)(d) and the overriding objective require substance over form where no prejudice results.

p. 2
02

Whether the Plaintiff is the registered proprietor and whether his title stands

Holding

Yes; certificate of lease, official search and rates receipts prove ownership; title unimpeached under section 26 LRA.

Reasoning

The Plaintiff produced a certificate of lease, certificate of official search and rates payment receipts up to 27 March 2013. The Defendant called no witnesses to rebut. Section 24 of the Land Registration Act raises a rebuttable presumption of ownership, and section 26 protects the unimpeached title, which Article 40 of the Constitution safeguards.

p. 3
03

Whether the Defendant trespassed and whether a permanent injunction should issue

Holding

Trespass by the Defendant's agents was proved on a balance of probabilities; permanent injunction granted.

Reasoning

The Plaintiff proved the invasion, digging of holes and erection of a fence through testimony and photographs, un-rebutted. The invasion blocked the Plaintiff and his family from accessing their home. Trespass being established, a permanent injunction issues; damages were not available as not pleaded.

p. 3

Legal principles established

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  • A certificate of lease confers a rebuttable presumption of ownership under section 24 of the Land Registration Act, and a title not impugned under section 26 is protected by Article 40 of the Constitution.
  • A supporting affidavit may properly be used in place of a witness statement where no prejudice is caused, in line with the overriding objective and Article 159(2)(d).
  • Trespass proved on a balance of probabilities justifies a permanent injunction.

Court orders

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  1. 1.Declaration that the Plaintiff is the registered proprietor and therefore owner of land parcel Eldoret Municipality/Block 9/3107.
  2. 2.The Defendant is directed to vacate from the suit property within thirty (30) days.
  3. 3.A permanent injunction restraining the Defendant from in any manner interfering with the Plaintiff's ownership and use of the suit property or in any part thereof without his consent/permission.
  4. 4.The plaintiff's costs be paid by the Defendant.
Jurisdiction invoked
Environment and Land Court Act No. 19 of 2011 (original jurisdiction over land disputes)

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, "Kennedy Obuchi Nyangen v Uasin Gishu County Government [2022] KEELC 1087 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1087/eng@2022-03-02

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