African Brotherhood Church the registered trustees v Head Teacher Makivenzi Primary School & another [2022] KEELC 1234 (KLR)
The bottom line
#A Kenyan court confirmed three institutions jointly own shared school land, restrained the primary school from encroaching on the church's portion, and ordered official boundary demarcation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff proved joint ownership of and entitlement to protection of its portion of the suit land
Yes. The Certificate of Official Search showed the land is registered to Masaku County Council and reserved for the three institutions, and the Defendants' own letter admitted the land was shared; the Defendants' encroachment was established on a balance of probability.
The official search showed the land reserved from 4 March 1993 for the Secondary School, the Church and the Primary School. The Defendants' letter of 16 October 2012 seeking subdivision and allotment admitted the land was shared by the three parties. The Defendants adduced no evidence, so the Plaintiff's testimony stood unchallenged, establishing defined distinct portions and trespass by felling trees and cultivating.
Effect of the Defendants' failure to appear and testify
The Plaintiff's evidence stood unchallenged and the defence was unsubstantiated.
Applying section 107 of the Evidence Act and the authority in Autar Singh Bahra v Raju Govindji as cited in Motex Knitwear v Gopitex Knitwear, the court held that where a defendant denies liability but calls no witness, the plaintiff's evidence is unchallenged and the defence averments unsubstantiated, so the claim must succeed if otherwise proved.
Whether the Plaintiff was entitled to a permanent injunction
Yes, having established a prima facie case under Giella v Cassman Brown, a permanent injunction was issued restraining the Defendants from the Plaintiff's portion.
The court applied the Giella v Cassman Brown conditions, found the Plaintiff had established a prima facie case, and noted trespass as an unjustifiable intrusion on land in another's possession, actionable at the instance of the person in possession. The Plaintiff confirmed ownership of a distinct, demarcated portion which the Defendants were encroaching upon and interfering with.
Legal principles established
#- A defendant who files a defence but fails to call evidence leaves the plaintiff's evidence unchallenged and uncontroverted
- Trespass is any unjustifiable intrusion upon land in possession of another, and proof of ownership is prima facie proof of possession
- Entitlement to an injunction is assessed on the Giella v Cassman Brown principles
Court orders
#- 1.A declaration that Land Parcel No. Machakos/Matuu/1263 is jointly owned by Makivenzi ABC Church, Makivenzi Secondary School and Makivenzi Primary School, and the Defendants have no exclusive rights over the whole land
- 2.A permanent injunction restraining the Defendants, their agents or servants from entering, interfering, cutting down trees, cultivating, putting up structures or dealing with the Plaintiff's portion of Land Parcel No. Machakos/Matuu/1263
- 3.The Land Registrar and Surveyor of the County Government of Machakos to demarcate the respective boundaries of the three institutions and issue letters of allotment, with the three institutions bearing the costs of the exercise
- 4.Each party to bear its own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) Constitution); not expressly cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "African Brotherhood Church the registered trustees v Head Teacher Makivenzi Primary School & another [2022] KEELC 1234 (KLR)", Case Analysis (2022). ELC Case No. 413 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1234/eng@2022-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.