Wabwire & another (Administrators of the Estate of Thadeous Wabwire) v Origi
The bottom line
#A Busia court ordered a landowner to demolish his structures and vacate within six months after two Land Registrar surveys proved he had built on his neighbour's parcel.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant trespassed onto the suit land
Trespass proved on the strength of two concurrent Land Registrar reports and credible oral evidence
Two Land Registrars (Chepkwesi in 2017 and Nyaberi in 2021, the latter at the defendant's own request) found that parcel 2481 covers the entire area the defendant claims and occupies. Their expertise was not doubted and no evidence rebutted their findings. The plaintiffs' evidence, the chief's baraza minutes, the assistant chief's letter and the demand letter corroborated the trespass. The defendant did not respond to the demand letter or impugn the reports.
Whether the plaintiffs are entitled to demolition, eviction and injunction
Demolition, eviction and permanent injunction granted; damages for trespass refused
Article 40 of the Constitution obliges the court to protect the plaintiffs' property rights. Having found trespass, the court granted demolition and eviction within six months, with liberty to evict in default, and a permanent injunction against the defendant and those claiming through him. Damages were refused because the trespass was not deliberate: the defendant bought his parcel in good faith and voluntarily submitted to the survey exercise.
Legal principles established
#- A registered proprietor is entitled to all rights and privileges appurtenant to the land, including the right to eject trespassers
- Trespass is actionable per se; no proof of actual loss or damage is required
- Expert evidence must be considered with all available evidence and the trial court decides whether to believe the expert, giving reasons
Court orders
#- 1.The defendant shall within six (6) months of the judgment demolish and remove any structure on land parcel No Bukhayo/matayos/2481 and vacate therefrom
- 2.In default, the plaintiffs shall be at liberty to evict the defendant from land parcel No Bukhayo/matayos/2481 in accordance with the law
- 3.The defendant, his family members, agents, servants or any other person acting through him shall be permanently injuncted from interfering with the plaintiffs' use and occupation of land parcel No Bukhayo/matayos/2481
- 4.The defendant shall meet the plaintiffs' costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction under Article 162(2) of the Constitution (property rights protection under Article 40 invoked in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wabwire & another (Administrators of the Estate of Thadeous Wabwire) v Origi", Case Analysis (2022). Environment & Land Case 112 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15707/eng@2022-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.