Fresco Bushlands (K) Limited v Isaak & 4 others

Planti ’s Case 2. The Plainti gave evidence through Bare Muhumed the administrator of the plainti’s projects in Kili County and currently the Manager of Kulalu farm and adopted his witness statement dated March 11, 2022. 3. PW1 stated that the plainti is the lessee of ninety ve thousand acres of LR No 14248 situate within Kili County also known as Kulalu Ranch leased from the Agricultural Development Corporation of Kenya which lease is still in force. 4. It was PW1’s evidence that the Plainti in 2013 led Malindi ELC No 123 of 2013 Fresco Bushlands (K) Ltd Versus The Agricultural Development Corporation in which the honourable court issued orders barring the said Agricultural Development Corporation from interfering with the plainti’s rights and interests in the said parcel of land. He further averred that the 1st to 4th defendants have neither sub lease from the plainti nor authorization from the 5th defendant to interfere with the Plainti’s rights contained in the lease agreement yet the 1st to 4th defendants have been grazing on the suit property in deance to demands and requests from the plainti that they stop trespassing. 5. PW1 also stated that the 1st to 4th defendants have become hostile and violent to the plainti’s agents and their actions have occasioned losses and/or damages to the plainti’s and urged the court to grant the orders as prayed. 6. The defendants neither led a defence nor gave evidence during the trial hence the matter proceeded undefended. Plainti ’s Submissions 7. Counsel for the Plainti submitted that the plainti leased the suit property from the 5th defendant of which they took possession and enjoyed all rights owing from the said lease until 2013 when they sued the 5th defendant in Civil Case No 123 of 2013 Fresco Bushlands (K) v Agricultural Development Corporation where the court restrained the 5th defendant from interfering with the plainti’s rights. Further, that having established its rights over the suit property the 1st to 4th defendants have entered the suit property without its permission thus are guilty of trespass. 8. Counsel relied on the case of Agricultural Development CorporationLands Limited v Raphael Mlewa Mkare & 515 others [2022] eKLR which cited the case of Telkom Kenya Limited v County Government of Muranga [2019] eKLR on the issue of trespass. 9. Counsel therefore urged the court to nd that the 1st to 4th defendants are trespassers and grant the orders as prayed as the plainti has proved its case to the required standard. Analysis and Determination 10. The plainti led this suit against the defendants who were served with summons to enter appearance and plaint but they neither led memorandum of appearance nor defence. This matter therefore proceeded undefended. 11. The issue for determination is whether the plainti has proved that the defendants are trespassers and whether the plainti has met the threshold for the grant of a permanent injunction. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4842/eng@2022-09-20 2

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12. According to Black’s Law Dictionary 8th Edition, trespass is dened, in the strictest sense, as: An entry on another’s ground, without a lawful authority, and doing some damage, however inconsiderable, to his real property” 13. A continuing trespass is dened as: A trespass in the nature of a permanent invasion on another’s rights, such as a sign that overhangs another’s property" 14. The plainti gave evidence and produced a lease agreement dated May 26, 2010 which agreement indicated the coordinates and boundaries were communicated by the 5th defendant. Further the plainti produced a letter from the 5th defendant dated August 11, 2010 which attached a map of the area. 15. This evidence was uncontroverted as the defendants did not led any defence. It follows that the 1st to 4th defendants’ action amounted to trespass. 16. It is strange that counsel for the 1st to 4th defendants led submissions attaching documents yet the defendants neither led a defence nor gave evidence. The submissions are therefore of no value as they are not anchored on any defence. 17. Further the court had also restrained the 5th defendant from interfering with the plainti’s rights to the suit land. There is no evidence to the contrary that the defendants are not trespassers. I therefore nd that the plainti has proved its case against the defendants and consequently I enter judgment as prayed in the plaint as follows: 1. A declaration is hereby issued that the defendants are trespassers on the suit property 2. An order of permanent injunction is hereby issued against the defendants by themselves and /or their hirelings, servants, employees and or agents or any persons claiming and acting on their behalf from entering, trespassing and/or continuing with the impugned intended developments on the suit property. 3. Costs of the suit. DATED, SIGNED AND DELIVERED AT MALINDI THIS 20TH DAY OF SEPTEMBER, 2022. M.A. ODENY JUDGE NB: In view of the Public Order No. 2 of 2021 and subsequent circular dated 28th March, 2021 from the Oce of the Chief Justice on the declarations of measures restricting court operations due to the third wave of Covid-19 pandemic this Judgment has been delivered online to the last known email address thereby waiving Order 21 [1] of the Civil Procedure Rules. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4842/eng@2022-09-20 3

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