Ogolla v Agwedo

family had been cultivating the land ever since he was a child and that upon the demise of his father he inherited the land and continued cultivating it. That the Defendant trespassed onto a portion of the land and started building structures on it. That because the Defendant was hostile, the plainti reported the matter to the area Chief and a meeting was held but the defendant was hostile in the meeting. That he also reported the matter to the Land Registrar and Land surveyor who came to the ground but the Defendant refused to cooperate hence no resolution was arrived at. That the Defendant has continued being in illegal possession of his (Plainti’s) land to the Plainti’s detriment. 4. The Plainti produced tittle deed and certicate of ocial search for the suit land as exhibits. He stated in court that he does not stay on the land. 5. On cross-examination the Plainti stated that the Defendant owns land in the neighborhood and that the Land Registrar and Surveyor visited the land but the Defendant was uncooperative. 6. On behalf of the defence the Defendant testied as DW1. He also adopted the contents of his witness statement recorded on 4/11/2019 as his evidence in chief. He had stated in the witness statement that he has never done any activity on the suit land. That his land is No. Kisumu/Kogony/6916 which he purchased and that the same is totally dierent and distinct from the suit land. That it is not true that he has trespassed onto the suit land as alleged by the Plainti. 7. He produced title deed and certicate of ocial search to land parcel No. Kisumu/Kogony/6916 as exhibits in the case. He stated that the house he has built is on his land which is on map sheet No. 6. He also produced a map as exhibit to show the position of his land on the ground. He testied further that the title deed produced by the Plainti shows that the suit land is on map sheet No. 9. That the suit land does not share any boundary with his land. That map sheet 6 is far away from map sheet 9. That the two lands are unrelated. That the Plainti has never brought a Surveyor to the land. Submissions 8. Written submissions dated 14th June 2023 were eld on behalf of the Plainti by the rm of Aoko, Ondieki & Company Advocates. Counsel relied on Black’s Law Dictionary 8th Edition where trespass is dened as “an entry on another’s ground without a lawful authority, and doing some damage however, inconsiderable, to his real property. Counsel similarly relied on Clek & Lindsell on Torts 18th Edition at Paragraph 18-11 where the denition of trespass is given as “any unjustiable intrusion by one person upon land in possession of another… trespass is actionable at the instance of the person in possession and that proof of ownership is prima facie proof of possession.” Reliance was also placed on Section 391 of the Trespass Act cap 294 Laws of Kenya. 9. Counsel relied on section 24 of the Land Registration Act, 2012 to submit that registration of a person as the proprietor of land vests in that person the absolute ownership of the land. That the Plainti in this case produced a copy of title deed to the suit land to prove ownership and that he testied to the eect that the Defendant had trespassed onto the land. That to establish the tort of trespass, a party has to prove his ownership of the property and that the Defendant’s occupation of the property is unjustied. 10. On whether or not a permanent injunction should issue, Counsel relied on the provisions of sections 24, 25 and 26 of the Land Registration Act and the case of Willy Kipsongok Moroga Vs Albert K. Morogo (2017) eKLR to submit that the plainti is entitled to protection of the law. That failure to issue the order of permanent injunction and eviction would be tantamount to negating the title of plainti contrary to law. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22068/eng@2023-12-07 2

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11. On whether or not the plainti is entitled to damages, Counsel relied on the cases of Park Towers Ltd Vs John Mithamo Njika & 7 another (2014) eKLR and Dancan Nderitu Ndegwa Vs KP &LC Limited & Another (2003) eKLR to submit that trespass to land is actionable per se (without proof of damages) That in this case the plainti has suered immeasurable loss as he has not been able to enjoy his land. Counsel relied on Halbury’s Laws of England 4th Edition volume 45 paragraph 26 1503 on computation of damages in an action for trespass. Counsel further submitted that the plainti has proved his case and urged the court to grant the prayers sought. 12. Written submissions dated 21st August 2023 were led by the rm of Omondi Abande & Co. Advocates on behalf of the Defendant. Counsel submitted that the plainti is bound by his pleadings and to adequately claim trespass he should have provided proof of the location of the boundary separating the two parcels of land. That the matter before the court is a boundary dispute as the plainti is not sure as to where the boundary between his land and the Defendant’s is located. 13. Counsel submitted further that the Plainti has failed to prove that the defendant trespassed onto the suit land. Counsel relied on Section 3(1) of the Trespass Act Cap 294 of the Laws of Kenya, Section 107 and 108 of the Evidence Act and the cases of Dave –vs- Business Machines Ltd (1974) EA 68 and Susan Grebedhin, HCC No. 3321 of 1993 to support the submission that he who alleges has to prove. That it is for the Plainti to prove his case on a balance of probabilities. 14. On whether or not the Plainti is entitled to damages, Counsel submitted that for the Plainti to be entitled to damages, he must prove that the Defendant indeed trespassed onto the Plainti’s land without reasonable excuse or permission. That the Defendant denied ever trespassing onto the suit land. That the Plainti did not adduce evidence to prove the trespass and that the Plainti did not refute the existence of the defendant’s land neither the claim that the parcels are not in the same vicinity. That therefore the Plainti is not entitled to damages as he failed to prove that the Defendant is the person who trespassed onto his land. 15. On whether the court should issue a permanent injunction restraining the defendant from remaining on or continuing being in occupation of the suit land, Counsel submitted that in order for an order or permanent injunction to issue, the conditions set in the case of Giella Vs Cassman Brown (1973) EA 348 need to be satised. That the Plainti has failed to satisfy these conditions. Counsel prayed that the Plaintis case be dismissed with costs. Issues for determination 16. From the pleadings led, evidence adduced and submission made by the parties it is clear that the issue for determination in this matter are: a. Whether or not the defendant trespassed onto the suit land b. Whether or not the plainti is entitled to damages for trespass c. Whether or not an order of permanent injunction should issue as prayed. d. What order to make on costs. Although the defendant raised and argued the issue of whether or not the dispute was a boundary dispute, this issue had been the subject of a preliminary objection raised by the Defendant on which the court delivered its ruling on 24/3/2021 hence the same is res judicata. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22068/eng@2023-12-07 3

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Analysis and determination 17. The rst issue for determination is whether or not the defendant trespassed onto the suit land. In paragraph 5 of the amended plaint, the Plainti pleaded that the Defendant trespassed and illegally took possession and entered onto the Plainti’s parcel of land known as Kisumu/Kogony/5656 and illegally started to plough, that the plainti reported the matter to the police and the Defendant was arrested with his workers but later released. That the Defendant together with his workers brought sand and marram onto the suit land ready to illegally put a structure thereon. 18. The Defendant denied ever trespassing onto the suit land and put the plainti to strict proof thereof. In his evidence, he stated that he had never entered or carried out any activities on the suit land. He produced documents to show that he owns a separate and distinct parcel of land which is situate in a dierent sheet map from the suit land. He testied that the two parcels of land do not share a common boundary. 19. From the denition of trespass as given by both parties in their submissions trespass to land is an unjustied intrusion onto someone’s land. In this case, while the Plainti pleaded that he reported the trespass to the police and the Defendant and his workers were arrested, there was no evidence produced to that eect. In his evidence the plainti stated that he actually reported the matter to the area Chief and later to the Land Registrar. There are no photographs to show the alleged illegal activities of the Defendant on the suit land. No Surveyors report was produced to show that the illegal activities, if any, are actually being done on the suit land. No evidence of the extent of the trespass; whether it covers the entire suit land or only a portion thereof. Under Sections 107 to 109 of the Evidence Act Cap 80 Laws of Kenya, the burden of proof was on the Plainti to prove the alleged trespass. There is no evidence that the suit land and the Defendant’s land share a common boundary. I nd that it has not been proved that the Defendant trespassed onto the suit land as claimed or at all. 20. Whether the plainti is entitled to damages for trespass and whether an order of permanent injunction should issue, is dependent on whether trespass is proved. Having found that the tort of trespass has not been proved, there is no basis for awarding damages or an order of permanent injunction. 21. I nd that the plainti has not proved his case on a balance of probabilities to warrant grant of the relief sought. The suit is therefore hereby dismissed. Costs to the Defendant. Orders accordingly. JUDGEMENT DATED AND SIGNED AT KISUMU AND DELIVERED THIS 7TH DAY OF DECEMBER, 2023 VIRTUALLY THROUGH MICROSOFT TEAMS ONLINE APPLICATION. E. ASATI, JUDGE. In the presence of: Maureen: Court Assistant. No Appearance for the Plainti. Raburu for the Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22068/eng@2023-12-07 4

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