Wambua v Koisinget & 9 others

b. General damages for trespass. c. Costs of the suit. d. Any other or further relief that this court may deem t and just to grant in the circumstances. 2. The plainti’s case is as follows. She is the registered owner of the suit land. She purchased it from the original owner Koisinget Ole Mutunkei Lamo. Before he subdivided the land from which the suit land mutated, Koisinget Ole Mutunkei Lamo owned L.R No. Kajiado/Kitengel/11377 which he subdivided into eight (8) portions for sale. The plainti purchased the suit land on 25/4/2001 and took possession. 3. On or about 2/4/2019, the defendants trespassed onto the suit land and committed acts of wanton damage and wastage. On enquiring from the defendants why they were engaging in their unlawful acts, the plainti learnt that they were claiming to be children of the original owner. They were claiming that they wanted their property back since they were not consulted when it was sold. The plainti had no transactional relationship with the defendants and since her right to the land is protected under Articles 40 and 60 of the Constitution, she led this suit seeking the four reliefs in paragraph 19 of the plaint dated 10/4/2019. 4. In support of her case, the plainti led the following evidence. a. Her written statement. b. Copy of title deed for the suit land dated 20/4/2001. c. Copy of certicate of ocial search dated 3/11/2015. d. Copy of green card for the suit land dated 9/3/2016. e. Copy of mutation form for L.R. 11377 from which the suit land mutated. 5. The defendants, through their counsel on record led a written statement of defence dated 15/11/2021 in which they generally deny the plainti’s claim. Vide paragraph 7 of the defence, they aver that to the best of their knowledge, the plainti bought 10 acres and not 14 and that she is aware of the excess acreage of her land. The defendants did not le any evidence in support of their defence. 6. At the trial on 3/5/2023 neither the defendants nor their counsel turned up even though the date had been taken by consent on 28/11/2022. The case proceeded, the defendants’ and their counsel’s absence notwithstanding. The plainti testied on oath and adopted her evidence led earlier. 7. The Plainti’s counsel led written submissions on 13/10/2023 and identied four issues for determination as follows. 8. a. Whether the plainti is the registered owner of the suit land. b. Whether the defendants have any valid claim over the suit land. c. Whether the defendants trespassed on the suit land. d. Whether the plainti is entitled to the reliefs sought. I have carefully considered all the evidence adduced in this case by the plainti including the witness statements and the documents. I have also considered the issue raised by the defendants in their defence. In addition to the above, I have considered the submissions led by the learned counsel for the plainti https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22036/eng@2023-12-06 2

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and the law cited therein. I nd that the four issues identied will settle the dispute. I make the following ndings. 9. On the rst issue, I nd that the plainti is the registered owner of the suit land. She has the title deed in her name. This is prima facie evidence of ownership. In addition she has the supporting documents such as the copy of green card and the mutation form which shows where her land mutated from. Under Sections 24 and 25 of the Land Registration Act, the plainti is vested with absolute ownership of the suit land together with all rights and privileges belonging or appurtenant thereto. 10. Regarding the second issue, I nd that the defendants have no valid claim to the land. They mounted a very feeble defence which was in fact an admission that the plainti owns ten (10) acres but claimed, without any evidence, that she did not own the balance of four acres. I nd no merit in this averment by the defendants. 11. There is overwhelming evidence from the plainti that the defendants trespassed onto the suit land. This evidence is uncontroverted by the defendants in any form. I believe this evidence and nd that indeed there was trespass. The plainti has not however adduced any evidence to show how much of the land was trespassed upon and for how long. The wanton damage and wastage is not explained in any detail. It is not in any form of evidence what this damage entailed. 12. Finally, I nd that the plainti is entitled to all the reliefs that she seeks in this suit. For the above stated reasons, I enter judgment for the plainti against the defendants both jointly and severally as prayed for in the plaint. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 6TH DAY OF DECEMBER 2023. M.N. GICHERU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22036/eng@2023-12-06 3

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