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ELCAllowedNot stated in the judgment as provided (arising from Kajiado ELC 701/2017)· [2024] KEELC 4034 (KLR)
Mochoge v Ndinini & another (Environment & Land Miscellaneous Case E008 of 2023) [2024] KEELC 4034 (KLR)
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·~2 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This is a ruling of the Environment and Land Court at Kajiado (M.N. Gicheru, J) on an amended notice of motion dated 19/5/2023 brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Sections 152E and 152G of the Land Act. The applicant, the registered owner of LR Kajiado/Loodariak/159, sought an eviction order against the respondents and those claiming through them, demolition of all structures they had erected, execution of the eviction by High Class Auctioneers, police security from the OCS Kisamis Police Station, and costs. The applicant had been a successful litigant in Kajiado ELC 701/2017, in which the respondents were restrained from trespassing on the suit land, but that plaint had contained no prayer for eviction, necessitating the present application. A survey report by the Land Registrar dated 14/6/2022 confirmed the respondents' encroachment, and an eviction notice served on 16/6/2022 was not heeded. Though served, the motion was unopposed: Daniel Tauta Ndinini attended court on 30/5/2023 but filed no response. The court held that the applicant's registered ownership was confirmed by the prior decision and the Land Registrar's report, that the rights of a registered owner under Sections 24 and 25 of the Land Registration Act cannot be defeated, and that the respondents had failed to lay any lawful claim despite ample opportunity. The court allowed the motion in terms of prayers 2 to 6, issuing the eviction and demolition orders, directing High Class Auctioneers to execute, ordering police security, and awarding costs to the applicant.
Key legal issues
#01
Entitlement of a registered owner to eviction of encroachers
Holding
The registered owner of land is entitled to an eviction order against persons who encroach on the land, particularly where ownership has been confirmed by a prior court decision and a Land Registrar's survey report.
Reasoning
The court noted the applicant's ownership had been confirmed both in ELC 701/2017, where the respondents were restrained from trespassing, and by the Land Registrar's report dated 14/6/2022 confirming encroachment. The respondents were served and given opportunity to respond but filed nothing. The rights of a registered owner under Sections 24 and 25 of the Land Registration Act cannot be defeated. The motion was unopposed and the court allowed prayers 2 to 6 in full.
p. 2
Legal principles established
#- The rights of a registered owner of land under the Land Registration Act cannot be defeated by a trespasser or adverse claimant.
Court orders
#- 1.An eviction order issued against the respondents, their servants, agents, heirs and dependants from LR Kajiado/Loodariak/159
- 2.An order for demolition of all structures erected on the suit land by the respondents or anybody claiming through them so as to ensure vacant possession
- 3.High Class Auctioneers to effect and execute the eviction orders
- 4.The Officer Commanding Kisamis Police Station (OCS) to provide security during the eviction exercise
- 5.Costs of the application borne by the respondents
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Sections 152E and 152G of the Land Act (Act No. 6 of 2012)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mochoge v Ndinini & another (Environment & Land Miscellaneous Case E008 of 2023) [2024] KEELC 4034 (KLR)", Case Analysis (2024). Not stated in the judgment as provided (arising from Kajiado ELC 701/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4034/eng@2024-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.