Fresco Bushlands (K) Limited v Isaak & 4 others
The bottom line
#A Kenyan court declared land occupants trespassers and banned them permanently because they never filed a defence or any evidence.
What this practically means
#Executive summary
#Key legal issues
#Trespass on leased land
The 1st to 4th defendants were trespassers as they entered and grazed on the suit property without sub-lease from the plaintiff or authorization from the lessor, and the plaintiff's lease evidence was uncontroverted.
The plaintiff produced a lease agreement dated May 26, 2010 and a letter from the 5th defendant dated August 11, 2010 attaching a map. The defendants filed no defence and gave no evidence, so the evidence stood uncontroverted. The court adopted Black's Law Dictionary definitions of trespass and continuing trespass and found entry without lawful authority established.
Permanent injunction
Having proved trespass, the plaintiff met the threshold for a permanent injunction restraining the defendants from entering or continuing developments on the suit property.
The court found the plaintiff proved its case to the required standard in an undefended suit and entered judgment as prayed, granting the declaration and permanent injunction sought in the plaint. The prior order in Malindi ELC No 123 of 2013 restraining the 5th defendant from interfering with the plaintiff's rights reinforced the plaintiff's protected interest.
Effect of submissions without a defence
Counsel for the 1st to 4th defendants filed submissions attaching documents, but these were of no value absent a defence or evidence.
The court noted it was strange that counsel filed submissions with documents although the defendants neither filed a memorandum of appearance nor a defence nor testified. Submissions not anchored on pleadings or evidence cannot assist a party in an undefended suit.
Legal principles established
#- Submissions filed without a defence or supporting evidence are of no value as they are not anchored on any defence.
- Uncontroverted evidence of a lease and boundaries, where defendants file no defence and give no evidence, suffices to prove trespass.
Court orders
#- 1.A declaration that the defendants are trespassers on the suit property
- 2.A permanent injunction restraining the defendants, their hirelings, servants, employees and/or agents from entering, trespassing and/or continuing with the impugned intended developments on the suit property
- 3.Costs of the suit to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land (trespass on LR No 14248, Kilifi County)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fresco Bushlands (K) Limited v Isaak & 4 others", Case Analysis (2022). Environment & Land Case 5 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4842/eng@2022-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.