Josephine Jeptum Cheptoo has come to this court by way of plaint seeking:-
1. A declaration that the Defendant has by his acts of occupying the Suit Property complained of herein, unlawfully encroached and trespassed onto the Plaintiff's plot in NAKURU/SURURU/1778 and thereby committed acts of private nuisance thereon and/ or trespassed on the same
2. A permanent injunction to restraining the Defendant by itself, its agents/servants and/or employees from trespassing onto L.R No. NAKURU/SURURU/1778.
3. A mandatory injunction compelling the Defendant by itself, its agents/servants/employees to pull down, or otherwise remove the structure unlawfully erected and being on the Plaintiff's property L.R No. NAKURU/SURURU/1778, cede vacant possession of the said parcel and restore it to its original condition.
4. A permanent injunction to restraining the Defendant by itself, its agents/servants and/or employees from trespassing onto the Plaintiff's property L.R No. NAKURU/SURURU/1778.
5. Eviction of the Defendant from NAKURU/SURURU/1778 under supervision of the OCS Mau Narok Police Station.
6. General and Exemplary damages for trespass to and/or nuisance of property, and nuisance.
7. Interest on (d) and (f) at Court rates from the date of ascertainment until date of payment in full. Costs of this suit
The defendant neither entered appearance nor filed defense despite having been served. The salient facts of the case are that the defendant entered the parcel of land in 1997 unlawfully without any justification and permission. The defendant has refused to vacate at the plaintiffs demand. The chief of the location, and the Land Registrar have been unable to resolve the dispute. The plaintiff laments that the defendant comfortably lives on the land.
When the matter came for hearing the plaintiff stated that he is the absolute proprietor of the suit property, which measures approximately 2.02 hectares. He acquired the property lawfully, and his ownership is supported by the relevant documents issued under his name. Sometimes in 1997, he discovered that the Defendant had unlawfully entered the suit property without his consent or any justifiable legal cause. He was shocked and distressed by this discovery and approached the Defendant to seek an explanation for his unlawful occupation. Despite his civil and amicable approach, the Defendant responded with arrogance, hostility, and violent behavior. He refused to vacate the property.
The plaintiff has written numerous letters to public administrative bodies, including the Chief's office, the District Officer, the Land Registrar, and the Ministry of Lands, seeking intervention. Unfortunately, his efforts have not yielded any positive results.
The Defendant's continued illegal occupation of the suit property has caused him significant distress, financial loss, and emotional trauma. His actions have deprived the plaintiff of the right to utilize the property for income-generating activities.
Whenever his family attempts to take possession of the land, they encounter extreme violence. The Defendant and his agents brandished crude weapons, issued threats, and chased them away, making them fear for their lives. Despite numerous calls and efforts to settle the issue amicably, the Defendant has failed and refused to vacate the suit property. His actions constitute trespass and nuisance, infringing upon the plaintiffs constitutionally guaranteed right to property.
The plaintiff prays that the court grants the reliefs sought in his plaint, including a declaration of trespass, an injunction restraining the Defendant from further occupation, an order for eviction, and compensation for the loss and damage suffered.
PW2 is the husband of the Plaintiff and has been actively involved in assisting her with efforts to reclaim possession of her lawfully owned property. He personally witnessed the Defendant's illegal occupation of the suit property since around 1997, when he unlawfully entered and settled on the land without his wife’s consent.
On several occasions, he accompanied his wife when she approached the Defendant to resolve the matter amicably. Despite her civil demeanor, the Defendant reacted with arrogance, hostility, and even violence.
PW2 states that he has written numerous letters to public authorities on behalf of his wife, including the area Chief, the District Officer, the Land Registrar, and the Ministry of Lands. Despite favorable rulings from these bodies, the Defendant has persistently refused to vacate the property.
He has been present during multiple attempts to take possession of the suit property. Each time, the Defendant and his agents responded with extreme violence, brandishing crude weapons, issuing threats, and physically chasing them off the land. These encounters left them in fear for their safety and well-being. The Defendant's continued unlawful occupation has caused immense stress to their family. His wife has suffered significant emotional and financial losses due to her inability to utilize her property for income-generating activities.
The plaintiff submits that Section 26 of the Land Registration Act protects title only where acquisition is lawful, procedural, and free from illegality or overriding interests. In Chemei Investments Ltd v Attornev General & Others [20181 eKLR. the Court held that registration cannot sanitize an unlawful or contested process. This principle must be read together with Article 40(6) of the Constitution, which expressly excludes protection for property acquired unlawfully.
The Court of Appeal in Munyu Maina v Hiram Gathiha Maina [20131 eKLR held:
"When a registered proprietor's root of title is challenged, it is not sufficient to dangle the title deed before the court. The proprietor must go beyond the instrument and demonstrate the legality of how he acquired the title."
I have considered the evidence on record and plaintiff’s submissions and do find that the plaintiff is the registered owner of the suit-land after a valid allocation by the Government of Kenya. The plaintiff was allocated the land by Settlement Fund Trustees and the transfer of land registered on the 8th March 2000. The title deed was issued in his name by the Land Registrar Nakuru on the 10th March 2000. Therefore, he holds a valid title that was produced before this court. The plaintiff has proved proprietary interest in the property. The allegations that the plaintiff has been violently prevented from taking possession of the suit property are not controverted by the defendant. The plaintiff has proved her case on a balance of probability and therefore the suit succeeds in the terms that:-
1. A declaration is hereby issued that the Defendant has by his acts of occupying the Suit Property complained of herein, unlawfully encroached and trespassed onto the Plaintiff's plot in NAKURU/SURURU/1778 and thereby committed acts of private nuisance thereon and/ or trespassed on the same
2. A mandatory injunction is hereby issued compelling the Defendant by itself, its agents/servants/employees to pull down, or otherwise remove the structure unlawfully erected and being on the Plaintiff's property L.R No. NAKURU/SURURU/1778, cede vacant possession of the said parcel and restore it to its original condition.
3. There be eviction of the Defendant from NAKURU/SURURU/1778 after issuance of 30 days notice under supervision of the OCS Mau Narok Police Station.
4. General and Exemplary damages for trespass to and/or nuisance of property, and nuisance amounting to Ksh 500,000
5. Interest on 4 at Court rates from the date of ascertainment until date of payment in full. Costs of this suit to the plaintiff.
1. A declaration that the Defendant has by his acts of occupying the Suit Property complained of herein, unlawfully encroached and trespassed onto the Plaintiff's plot in NAKURU/SURURU/1778 and thereby committed acts of private nuisance thereon and/ or trespassed on the same
2. A permanent injunction to restraining the Defendant by itself, its agents/servants and/or employees from trespassing onto L.R No. NAKURU/SURURU/1778.
3. A mandatory injunction compelling the Defendant by itself, its agents/servants/employees to pull down, or otherwise remove the structure unlawfully erected and being on the Plaintiff's property L.R No. NAKURU/SURURU/1778, cede vacant possession of the said parcel and restore it to its original condition.
4. A permanent injunction to restraining the Defendant by itself, its agents/servants and/or employees from trespassing onto the Plaintiff's property L.R No. NAKURU/SURURU/1778.
5. Eviction of the Defendant from NAKURU/SURURU/1778 under supervision of the OCS Mau Narok Police Station.
6. General and Exemplary damages for trespass to and/or nuisance of property, and nuisance.
7. Interest on (d) and (f) at Court rates from the date of ascertainment until date of payment in full. Costs of this suit
The defendant neither entered appearance nor filed defense despite having been served. The salient facts of the case are that the defendant entered the parcel of land in 1997 unlawfully without any justification and permission. The defendant has refused to vacate at the plaintiffs demand. The chief of the location, and the Land Registrar have been unable to resolve the dispute. The plaintiff laments that the defendant comfortably lives on the land.
When the matter came for hearing the plaintiff stated that he is the absolute proprietor of the suit property, which measures approximately 2.02 hectares. He acquired the property lawfully, and his ownership is supported by the relevant documents issued under his name. Sometimes in 1997, he discovered that the Defendant had unlawfully entered the suit property without his consent or any justifiable legal cause. He was shocked and distressed by this discovery and approached the Defendant to seek an explanation for his unlawful occupation. Despite his civil and amicable approach, the Defendant responded with arrogance, hostility, and violent behavior. He refused to vacate the property.
The plaintiff has written numerous letters to public administrative bodies, including the Chief's office, the District Officer, the Land Registrar, and the Ministry of Lands, seeking intervention. Unfortunately, his efforts have not yielded any positive results.
The Defendant's continued illegal occupation of the suit property has caused him significant distress, financial loss, and emotional trauma. His actions have deprived the plaintiff of the right to utilize the property for income-generating activities.
Whenever his family attempts to take possession of the land, they encounter extreme violence. The Defendant and his agents brandished crude weapons, issued threats, and chased them away, making them fear for their lives. Despite numerous calls and efforts to settle the issue amicably, the Defendant has failed and refused to vacate the suit property. His actions constitute trespass and nuisance, infringing upon the plaintiffs constitutionally guaranteed right to property.
The plaintiff prays that the court grants the reliefs sought in his plaint, including a declaration of trespass, an injunction restraining the Defendant from further occupation, an order for eviction, and compensation for the loss and damage suffered.
PW2 is the husband of the Plaintiff and has been actively involved in assisting her with efforts to reclaim possession of her lawfully owned property. He personally witnessed the Defendant's illegal occupation of the suit property since around 1997, when he unlawfully entered and settled on the land without his wife’s consent.
On several occasions, he accompanied his wife when she approached the Defendant to resolve the matter amicably. Despite her civil demeanor, the Defendant reacted with arrogance, hostility, and even violence.
PW2 states that he has written numerous letters to public authorities on behalf of his wife, including the area Chief, the District Officer, the Land Registrar, and the Ministry of Lands. Despite favorable rulings from these bodies, the Defendant has persistently refused to vacate the property.
He has been present during multiple attempts to take possession of the suit property. Each time, the Defendant and his agents responded with extreme violence, brandishing crude weapons, issuing threats, and physically chasing them off the land. These encounters left them in fear for their safety and well-being. The Defendant's continued unlawful occupation has caused immense stress to their family. His wife has suffered significant emotional and financial losses due to her inability to utilize her property for income-generating activities.
The plaintiff submits that Section 26 of the Land Registration Act protects title only where acquisition is lawful, procedural, and free from illegality or overriding interests. In Chemei Investments Ltd v Attornev General & Others [20181 eKLR. the Court held that registration cannot sanitize an unlawful or contested process. This principle must be read together with Article 40(6) of the Constitution, which expressly excludes protection for property acquired unlawfully.
The Court of Appeal in Munyu Maina v Hiram Gathiha Maina [20131 eKLR held:
"When a registered proprietor's root of title is challenged, it is not sufficient to dangle the title deed before the court. The proprietor must go beyond the instrument and demonstrate the legality of how he acquired the title."
I have considered the evidence on record and plaintiff’s submissions and do find that the plaintiff is the registered owner of the suit-land after a valid allocation by the Government of Kenya. The plaintiff was allocated the land by Settlement Fund Trustees and the transfer of land registered on the 8th March 2000. The title deed was issued in his name by the Land Registrar Nakuru on the 10th March 2000. Therefore, he holds a valid title that was produced before this court. The plaintiff has proved proprietary interest in the property. The allegations that the plaintiff has been violently prevented from taking possession of the suit property are not controverted by the defendant. The plaintiff has proved her case on a balance of probability and therefore the suit succeeds in the terms that:-
1. A declaration is hereby issued that the Defendant has by his acts of occupying the Suit Property complained of herein, unlawfully encroached and trespassed onto the Plaintiff's plot in NAKURU/SURURU/1778 and thereby committed acts of private nuisance thereon and/ or trespassed on the same
2. A mandatory injunction is hereby issued compelling the Defendant by itself, its agents/servants/employees to pull down, or otherwise remove the structure unlawfully erected and being on the Plaintiff's property L.R No. NAKURU/SURURU/1778, cede vacant possession of the said parcel and restore it to its original condition.
3. There be eviction of the Defendant from NAKURU/SURURU/1778 after issuance of 30 days notice under supervision of the OCS Mau Narok Police Station.
4. General and Exemplary damages for trespass to and/or nuisance of property, and nuisance amounting to Ksh 500,000
5. Interest on 4 at Court rates from the date of ascertainment until date of payment in full. Costs of this suit to the plaintiff.