Josphat K. Chelimo has sued Joseph Cheruiyot seeking a declaration that the Defendant has by his acts of occupying the Suit Property complained of herein, unlawfully encroached and trespassed onto the Plaintiffs plot in NAKURU/SURURU/1776 and thereby committed acts of private nuisance thereon and/ or trespassed on the same. He further seeks a permanent injunction to restraining the Defendant by itself, its agents/servants and/or employees from trespassing onto L.R NO. NAKURU/SURURU/1776. Moreover, he seeks 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/1776, cede vacant possession of the said parcel and restore it to its original condition and a permanent injunction restraining the Defendant by itself, its agents/servants and/or employees from trespassing onto the Plaintiffs property L.R No. NAKURU/SURURU/1776. He seeks, eviction of the Defendant from NAKURU/SURURU/1776 under supervision of the OCS Mau Narok Police Station. General and Exemplary damages for trespass to and/or nuisance of property, and nuisance. Interest on (d) and (f) at Court rates from the date of ascertainment until date of payment in full.
The facts of the case are the plaintiff is a male of sound mind, residing and working for gain in Nakuru. The Defendant is a Kenyan male of sound mind and disposition, residing and working for gain in Nakuru within the Republic of Kenya. The Plaintiff is the absolute registered proprietor of Title No. NAKURU/SURURU/1776 which is approximately 2.0 Hectares. The Plaintiff is the absolute proprietor of the suit property. That sometimes in 1997 or thereabout, the Defendant unlawfully entered the suit property without any justifiable cause and/or the Plaintiffs permission. The Plaintiff became extremely wary and immediately approached the Defendant for an explanation on his and his family's actions which had him confused and in unexplainable distress. The Plaintiff categorically asked the Defendant to vacate henceforth the suit property.
The Plaintiff states that despite being civil and attempting to solve the problem amicably, the Defendant became egotistical, arrogant, violent and loud for reasons unknown to the Plaintiff and proceeded to stay in the suit property, together with his family, which actions constitutes trespass upon her private land, consequently, he reported the matter to the Chief and later to the District Officer, then the Land Registrar in Nakuru, who decided the case in his favour, and ruled that the property belonged to the Plaintiff.
The Plaintiff further avers that despite the findings of the Land Registrar, the Defendant refused to vacate the suit property and he proceeded to the Sururu Settlement Scheme Probe Committee who also decided in his favour, which findings the Defendant also chose to ignore.
The Plaintiff was keen to always write to the public administrative bodies such as the Chief's office, the District Officers, the Land Registrars and the Ministry of Lands, but his actions bore no fruit, with each step seeming like a flailing attempt to recover possession of his property.
However, despite taking the above actions, the Defendant remains unmoved and nonchalantly continues to trespass on the suit land and is now comfortably living on the suit land and his continued occupation continues to disenfranchise the Plaintiff greatly.
Despite numerous calls and efforts to reasonably settle the issue, the Defendant has failed, refused and/or failed to vacate and yield back possession of the suit property which is an affront to constitutionally guaranteed rights to property. It is the averment of the Plaintiff that the Plaintiff and his family have since encountered extreme violence each time they have attempted to take possession of the property, with the Defendant and/or his agents and/or his undersigns chasing them from the property all the while brandishing crude weapons and hurling threats, making them fear for their very lives.
The Plaintiff contends that the Defendant's occupation on the suit plot gravely offends the precepts of constitutionally guaranteed right to property. The Plaintiff avers that he reported the issue to the area chief, and the District Officer after which the report was also made to the Lands and Settlement Ministry sometime in 2001, when the Assistant Minister forwarded the same to Provincial Commissioner, Rift Valley Province.
The Plaintiff asserts that despite the numerous efforts to protect his property from the Defendant's illegal occupation, and requests made to the Defendant himself, the requests have fallen on deaf ears with the Defendant remaining elusive and violent with the sole intent of frustrating the Plaintiff. The Plaintiff avers that despite taking the above actions, the Defendant remains unmoved and nonchalantly continues to trespass on the land and is now comfortably living on the suit property and his continued occupation continues to disenfranchise the Plaintiff and his family greatly.
The Plaintiff avers that the Defendant has refused and/or failed to vacate the suit property which he has converted for his own use. In addition, the Plaintiff avers that the Defendant's actions amount to nuisance. The Plaintiff contends that the Defendant's occupation of the suit property is illegal and a limitation to his enjoyment of the occupation and use of the suit property as the owner and the Defendant’s actions amount to trespass.
When the matter came up 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. Sometime 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.
He approached the Defendant to seek an explanation for his unlawful occupation who responded with arrogance, hostility, and violent behavior. The Defendant's continued illegal occupation of the suit property has caused him significant distress, financial loss, and emotional trauma. His actions have deprived him of the right to utilize his property for income-generating activities. He prays for grant of 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, Emmanuel Kiptum a neighbour of the Plaintiff stated that he has been actively involved in assisting him with efforts to reclaim possession of his lawfully owned property. He has personally witnessed the Defendant's illegal occupation of the suit property since around 1997, when he unlawfully entered and settled on the land without the Plaintiff's consent. On several occasions, he accompanied the Plaintiff when he approached the Defendant to resolve the matter amicably. Despite his civil demeanor, the Defendant reacted with arrogance, hostility, and even violence.
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.
PW3, Japheth Cheserek also gave evidence and reiterated what the plaintiff had stated.
The Land Registrar Nakuru, Emmily Sitianei, an advocate of High Court of Kenya, testified that the plaintiff is the registered proprietor of the suit land. He is the first proprietor having been registered on 15.7.1997. The defendant was served but neither entered appearance nor filed defence.
The evidence given by the plaintiff is not controverted. The plaintiff is the registered owner of the suit property. The land was allocated to the plaintiff by the Government of Kenya. The defendant is in possession of the parcel of land illegally due to the fact that the land belongs to the plaintiff.
The issue of uncontroverted evidence was addressed by Justice Mwongo in Peter Ngigi & Another (suing as legal representative of the Estate of Joan Wambui Ngigi) v Thomas Ondiki Oduor & Another 2019 eKLR where he stated:-
“22.There are any authorities that deal with the question of uncontroverted evidence, such as the situation in the present case where the defence did not show up at the trial. The general position running through such authorities is that uncontroverted evidence bears a lot of weight and a statement of defence without any evidence to support the assertions therein will amount to mere statements.”
In Janet Kaphiphe Ouma & Another v Marie Stopes International (Kenya) Kisumu HCCC No. 68 of 2007 Ali-Aroni, J. citing the decision in Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter Civil Appeal No. 23 of 1997 held that:-
“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations ... Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence”.
In Interchemie EA Limited v Nakuru Veterinary Centre Limited Nairobi (Milimani) HCCC No. 165B of 2000, Mbaluto, J. held that where no witness is called on behalf of the defendant, the evidence tendered on behalf of the plaintiff stands uncontroverted. Mulwa J, however in the case of Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR stated:-
“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence in unchallenged or not.”
In this matter the plaintiff has proved his case on a balance of probabilities and therefore succeeds. I do grant judgment as prayed thus:-
(a) A declaration that the Defendant has by his acts of occupying the Suit Property complained of herein, unlawfully encroached and trespassed onto the Plaintiffs plot in NAKURU/SURURU/1776 and thereby committed acts of private nuisance thereon and/ or trespassed on the same.
(b) A permanent injunction to restraining the Defendant by itself, its agents/servants and/or employees from trespassing onto L.R NO. NAKURU/SURURU/1776.
(c) 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/1776, cede vacant possession of the said parcel and restore it to its original condition and a permanent injunction restraining the Defendant by itself, its agents/servants and/or employees from trespassing onto the Plaintiffs property L.R No. NAKURU/SURURU/1776.
(d) The defendant to vacate the parcel of land within 90 days failure of which eviction of the Defendant from NAKURU/SURURU/1776 be done under supervision of the OCS Mau Narok Police Station.
(e)The defendant to pay General damages for trespass ---200,000
(f) the defendant to pay Exemplary damages –100,000
Interest on (e) and (f) at Court rates from the date of judgment until date of payment in full.
The facts of the case are the plaintiff is a male of sound mind, residing and working for gain in Nakuru. The Defendant is a Kenyan male of sound mind and disposition, residing and working for gain in Nakuru within the Republic of Kenya. The Plaintiff is the absolute registered proprietor of Title No. NAKURU/SURURU/1776 which is approximately 2.0 Hectares. The Plaintiff is the absolute proprietor of the suit property. That sometimes in 1997 or thereabout, the Defendant unlawfully entered the suit property without any justifiable cause and/or the Plaintiffs permission. The Plaintiff became extremely wary and immediately approached the Defendant for an explanation on his and his family's actions which had him confused and in unexplainable distress. The Plaintiff categorically asked the Defendant to vacate henceforth the suit property.
The Plaintiff states that despite being civil and attempting to solve the problem amicably, the Defendant became egotistical, arrogant, violent and loud for reasons unknown to the Plaintiff and proceeded to stay in the suit property, together with his family, which actions constitutes trespass upon her private land, consequently, he reported the matter to the Chief and later to the District Officer, then the Land Registrar in Nakuru, who decided the case in his favour, and ruled that the property belonged to the Plaintiff.
The Plaintiff further avers that despite the findings of the Land Registrar, the Defendant refused to vacate the suit property and he proceeded to the Sururu Settlement Scheme Probe Committee who also decided in his favour, which findings the Defendant also chose to ignore.
The Plaintiff was keen to always write to the public administrative bodies such as the Chief's office, the District Officers, the Land Registrars and the Ministry of Lands, but his actions bore no fruit, with each step seeming like a flailing attempt to recover possession of his property.
However, despite taking the above actions, the Defendant remains unmoved and nonchalantly continues to trespass on the suit land and is now comfortably living on the suit land and his continued occupation continues to disenfranchise the Plaintiff greatly.
Despite numerous calls and efforts to reasonably settle the issue, the Defendant has failed, refused and/or failed to vacate and yield back possession of the suit property which is an affront to constitutionally guaranteed rights to property. It is the averment of the Plaintiff that the Plaintiff and his family have since encountered extreme violence each time they have attempted to take possession of the property, with the Defendant and/or his agents and/or his undersigns chasing them from the property all the while brandishing crude weapons and hurling threats, making them fear for their very lives.
The Plaintiff contends that the Defendant's occupation on the suit plot gravely offends the precepts of constitutionally guaranteed right to property. The Plaintiff avers that he reported the issue to the area chief, and the District Officer after which the report was also made to the Lands and Settlement Ministry sometime in 2001, when the Assistant Minister forwarded the same to Provincial Commissioner, Rift Valley Province.
The Plaintiff asserts that despite the numerous efforts to protect his property from the Defendant's illegal occupation, and requests made to the Defendant himself, the requests have fallen on deaf ears with the Defendant remaining elusive and violent with the sole intent of frustrating the Plaintiff. The Plaintiff avers that despite taking the above actions, the Defendant remains unmoved and nonchalantly continues to trespass on the land and is now comfortably living on the suit property and his continued occupation continues to disenfranchise the Plaintiff and his family greatly.
The Plaintiff avers that the Defendant has refused and/or failed to vacate the suit property which he has converted for his own use. In addition, the Plaintiff avers that the Defendant's actions amount to nuisance. The Plaintiff contends that the Defendant's occupation of the suit property is illegal and a limitation to his enjoyment of the occupation and use of the suit property as the owner and the Defendant’s actions amount to trespass.
When the matter came up 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. Sometime 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.
He approached the Defendant to seek an explanation for his unlawful occupation who responded with arrogance, hostility, and violent behavior. The Defendant's continued illegal occupation of the suit property has caused him significant distress, financial loss, and emotional trauma. His actions have deprived him of the right to utilize his property for income-generating activities. He prays for grant of 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, Emmanuel Kiptum a neighbour of the Plaintiff stated that he has been actively involved in assisting him with efforts to reclaim possession of his lawfully owned property. He has personally witnessed the Defendant's illegal occupation of the suit property since around 1997, when he unlawfully entered and settled on the land without the Plaintiff's consent. On several occasions, he accompanied the Plaintiff when he approached the Defendant to resolve the matter amicably. Despite his civil demeanor, the Defendant reacted with arrogance, hostility, and even violence.
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.
PW3, Japheth Cheserek also gave evidence and reiterated what the plaintiff had stated.
The Land Registrar Nakuru, Emmily Sitianei, an advocate of High Court of Kenya, testified that the plaintiff is the registered proprietor of the suit land. He is the first proprietor having been registered on 15.7.1997. The defendant was served but neither entered appearance nor filed defence.
The evidence given by the plaintiff is not controverted. The plaintiff is the registered owner of the suit property. The land was allocated to the plaintiff by the Government of Kenya. The defendant is in possession of the parcel of land illegally due to the fact that the land belongs to the plaintiff.
The issue of uncontroverted evidence was addressed by Justice Mwongo in Peter Ngigi & Another (suing as legal representative of the Estate of Joan Wambui Ngigi) v Thomas Ondiki Oduor & Another 2019 eKLR where he stated:-
“22.There are any authorities that deal with the question of uncontroverted evidence, such as the situation in the present case where the defence did not show up at the trial. The general position running through such authorities is that uncontroverted evidence bears a lot of weight and a statement of defence without any evidence to support the assertions therein will amount to mere statements.”
In Janet Kaphiphe Ouma & Another v Marie Stopes International (Kenya) Kisumu HCCC No. 68 of 2007 Ali-Aroni, J. citing the decision in Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter Civil Appeal No. 23 of 1997 held that:-
“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations ... Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence”.
In Interchemie EA Limited v Nakuru Veterinary Centre Limited Nairobi (Milimani) HCCC No. 165B of 2000, Mbaluto, J. held that where no witness is called on behalf of the defendant, the evidence tendered on behalf of the plaintiff stands uncontroverted. Mulwa J, however in the case of Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR stated:-
“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence in unchallenged or not.”
In this matter the plaintiff has proved his case on a balance of probabilities and therefore succeeds. I do grant judgment as prayed thus:-
(a) A declaration that the Defendant has by his acts of occupying the Suit Property complained of herein, unlawfully encroached and trespassed onto the Plaintiffs plot in NAKURU/SURURU/1776 and thereby committed acts of private nuisance thereon and/ or trespassed on the same.
(b) A permanent injunction to restraining the Defendant by itself, its agents/servants and/or employees from trespassing onto L.R NO. NAKURU/SURURU/1776.
(c) 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/1776, cede vacant possession of the said parcel and restore it to its original condition and a permanent injunction restraining the Defendant by itself, its agents/servants and/or employees from trespassing onto the Plaintiffs property L.R No. NAKURU/SURURU/1776.
(d) The defendant to vacate the parcel of land within 90 days failure of which eviction of the Defendant from NAKURU/SURURU/1776 be done under supervision of the OCS Mau Narok Police Station.
(e)The defendant to pay General damages for trespass ---200,000
(f) the defendant to pay Exemplary damages –100,000
Interest on (e) and (f) at Court rates from the date of judgment until date of payment in full.