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ELCAllowedNot stated in judgment (Plaint dated 1st July, 2015)· [2024] KEELC 6181 (KLR)
Backshuwein (Suing in his Capacity as the Administrator of the Estate of Abdalla Salim Backshuwein - Deceased) v Said & another (Environment & Land Case 105 of 2015) [2024] KEELC 6181 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#A Kenyan landowner won a permanent injunction after a licensed surveyor's report proved a neighbour's kiosk encroached 48 square metres of the property.
What this practically means
#Executive summary
#By a plaint dated 1st July 2015, the plaintiff, suing as executor of the estate of the late Abdalla Salim Bakhshuwein, sought a permanent injunction restraining the defendants from trespassing on, selling, alienating or dealing with the suit property (portion 6108 (ORG 780/3) Malindi, formerly 94/2, arising from plot 94) and from undertaking further constructions or digging pits. At trial, PW1 adopted his witness statement and produced documents including a Certificate of Postal Search showing registration as executor and photographs of encroachment; he was not cross-examined. PW2, a licensed surveyor, produced a report dated 17th April 2021 finding that a kiosk partly encroached portion 10483 by 48 square metres and partly encroached the road. The defendants, though having filed a defence and witness statements, gave no evidence and filed no submissions, leaving the plaintiff's evidence uncontroverted. The court framed a single issue: whether the plaintiff was entitled to the permanent injunction sought. Applying the principle that uncontroverted evidence does not automatically entitle a plaintiff to judgment as prayed, and that the burden of proof remains on the plaintiff under sections 107 and 108 of the Evidence Act, the court found the plaintiff had proved his case on a balance of probabilities. It issued a permanent injunction against the defendants in the terms sought and awarded costs to the plaintiff. Judgment delivered at Nakuru on 27th September 2024 by M. A. Odeny, Judge.
Key legal issues
#01
Whether the plaintiff proved entitlement to a permanent injunction
Holding
Yes - the plaintiff, as registered owner/executor, proved encroachment on a balance of probabilities
Reasoning
PW1 produced a Certificate of Postal Search showing registration as executor and photographs of encroachment. PW2, a licensed surveyor, prepared an uncontroverted report finding that the kiosk partly encroached portion 10483 by 48 square metres. The defendants gave no evidence or submissions, so the defence remained mere allegations. The court held the case proved on a balance of probabilities and granted a permanent injunction with costs.
p. 4
Legal principles established
#- A defendant who files a defence but adduces no evidence leaves the statements in the defence as mere allegations
- Uncontroverted evidence does not automatically entitle a plaintiff to judgment as prayed; the burden of proof on a balance of probabilities remains on the plaintiff
Court orders
#- 1.A permanent injunction issued against the Defendants, their servants, agents, employees, legal representatives or any other person claiming interest through them, from trespassing, entering, remaining, selling, alienating or dealing with the suit property in any manner whatsoever, and to cease undertaking any further constructions and digging of pits in the suit premises
- 2.Costs to the Plaintiff
- Jurisdiction invoked
- Original civil suit (plaint) for permanent injunction over land; Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Backshuwein (Suing in his Capacity as the Administrator of the Estate of Abdalla Salim Backshuwein - Deceased) v Said & another (Environment & Land Case 105 of 2015) [2024] KEELC 6181 (KLR)", Case Analysis (2024). Not stated in judgment (Plaint dated 1st July, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6181/eng@2024-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.