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ELCDismissedBusia ELC Case (plaint dated 22nd April 2013; consolidated order referenced BUSIA HCCC No. 50 of 2013 (O.S))· [2022] KEELC 2626 (KLR)

Opondo v Hainja & another (Environment & Land Case 28 of 2013) [2022] KEELC 2626 (KLR)

Environment and Land Court
7 July 2022
AOA. Omollo
3,178 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Busia dismissed a landowner's trespass and compensation claim because he failed to prove with survey evidence that the damage happened on his land.

What this practically means

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Executive summary

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The plaintiff, registered owner of L.R. No. Bunyala/Bukoma/306, sued the defendants (who reside on the neighbouring parcel) claiming they trespassed onto his land on 2nd October 2012 while executing an eviction order issued in Busia PM Land Case No. 45 of 2007, demolished a three-door rental house, carried away building materials and destroyed trees. He sought a permanent injunction, compensation for destroyed properties and loss of user, plus costs. The defendants denied the claim, contending the eviction order concerned parcel 1823/1824 (subdivisions of 307) and that the demolished houses belonged to assistant chief Zachary Otieno Opere; they also raised res judicata and claimed 0.23ha of parcel 306 by adverse possession since 1961. The plaintiff testified and called a valuer who valued the land and damaged buildings at Kshs.3,190,000, admitting reliance on the plaintiff's information. The defendants testified that they executed the order against Otieno Opere's houses. The court framed four issues and held that the plaintiff failed to prove trespass onto parcel 306 in October 2012, noting he did not produce a survey report despite engaging a surveyor; that the pleadings in Petition No. 3 of 2012 show the demolished houses were Otieno Opere's on parcel 1823; and that no basis existed to award compensation. The suit was dismissed with costs to the defendants.

Key legal issues

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01

Whether the plaintiff proved trespass onto Bunyala/Bukoma/306 in October 2012

Holding

Trespass was not proved; the plaintiff's alleged invasion coincided with the defendants' lawful occupation of the neighbouring parcel 1823 under a court order, and no survey report was produced to show encroachment onto parcel 306.

Reasoning

The plaintiff was the registered owner of parcel 306, but the alleged trespass occurred while the defendants were executing an eviction order relating to parcel 1823, a subdivision of 307. The plaintiff admitted the parcels neighbour each other and mentioned calling a surveyor but did not produce the survey report or call the surveyor. The defendants' admission to occupying 0.23ha by adverse possession was not treated as proof of the alleged October 2012 trespass.

p. 4
02

Whether the demolished house belonged to the plaintiff so as to ground compensation

Holding

The plaintiff failed to prove the demolished house was his; the pleadings in Busia High Court Petition No. 3 of 2012 show the demolished house belonged to Zachary Otieno Opere on parcel 1823.

Reasoning

The defendants asserted the demolished houses belonged to assistant chief Zachary Otieno Opere and relied on the pleadings and proceedings in Petition No. 3 of 2012, in which Opere pleaded that his homestead on parcel 1823 was demolished and flattened on 1st October 2012. The plaintiff, though not a party to the eviction proceedings, invited a surveyor but did not produce the survey report or call him as a witness. The court found the demolished houses were not on parcel 306.

p. 5

Legal principles established

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  • A party claiming compensation for property destroyed in the course of execution of a court order must prove, by cogent evidence such as a survey report, that the property destroyed was his and on his parcel

Court orders

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  1. 1.Suit dismissed with costs to the defendants

Authorities

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Legislation

  • Civil Procedure ActSections 7 and 8
  • Constitution of Kenya, 2010Article 28
  • Constitution of Kenya, 2010Article 40

Cases cited (1)

  • Mathew Mutua Mutio Versus Car General (K) Ltd
    Nairobi HCCC Case No. 4272 of 1992
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over trespass to and ownership of land (Land Registration Act / Article 162(2)(b) environment and land jurisdiction; not expressly stated in judgment)

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, "Opondo v Hainja & another (Environment & Land Case 28 of 2013) [2022] KEELC 2626 (KLR)", Case Analysis (2022). Busia ELC Case (plaint dated 22nd April 2013; consolidated order referenced BUSIA HCCC No. 50 of 2013 (O.S)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2626/eng@2022-07-07

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