Paul Ndunda Mwilu v Domnic Kimathi [2015] KEHC 6515 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

ELC. NO. 212 OF 2013

PAUL NDUNDA MWILU ................................................................. PLAINTIFF

- V E R S U S -

DOMNIC KIMATHI ......................................................................   DEFENDANT

JUDGEMENT

1.   The plaintiff filed this suit on 24th September 2013 seeking the  following prayers;

a)    A declaration that the property known as Plot No. Kwale/Bumbani "C"/90 is wholly and solely owned by the plaintiff, and that the defendant's action in trespassing on it  and planting trees and construction of a pit latrine thereon is  unlawful, illegal and an affront to sanctity of ownership.

b)    Mandatory injunction compelling the defendant to remove the trees  complained of, and demolish the pit latrine constructed   on Plot no. Kwale/Bumbani "C"/90.

Alternatively, the plaintiff be granted leave to remove out the  same by himself, at a cost to be recovered from the defendant.

c)    A permanent injunction restraining the defendant, by himself,  his family, agents, servants and/or employees from going into or in any way whatsoever entering and/or interfering with, or any part, of all that parcel of land known as Plot No  Kwale/Bumbani "C"/90.

d)    Damages

e)    Costs of the suit.

f)    Interest on (d) & (e) above at court rate from the date of  judgment until payment in full.

g)    Such other or further orders as court may deem fit and just to  grant.

2.   The defendant was served with summons to enter appearance and plaint on 9th October 2013 as per the affidavit of service on record.  He did not enter appearance or file a defence within the prescribed time.  This suit was prosecuted by the plaintiff as undefended.  The plaintiff stated in his evidence that he purchased this land     Kwale/Bumbani C/90 from a Mr. John Gichohi Mwangi who showed him the boundaries of this plot.  He continued that the defendant lives on plot no. 560.

3.   According to the plaintiff, the defendant has encroached on his  land by planting  trees and building toilet/bathrooms on it.  He  reported the matter to the Area Chief who advised him to visit the  lands department. He acted on the Chief's advice and visited the   Land Registrar.  The  Land Registrar and Surveyor visited the site  and made a report which he produced as PExh.3. He also produced  as PEx.4 the Registrar's letter dated 19th February, 2013.  The defendant ignored this report and did not move out.

4.   The plaintiff's further evidence is that he again sought the   assistance of the County Commissioner to have the defendant   move out. The County Commissioner wrote to the defendant on   16th April, 2013 summoning the defendant to his office.  The defendant failed to attend.  The plaintiff produced this letter as PEx.5.  He also had photographs of the trees and toilet which he  produced as PEX.7.  Later his advocate did a demand letter to the    defendant which letter he produced as PEx.8. He urged the court to   order the defendant to cut down the trees and demolish the   structures. He prayed in the alternative that he be provided with  security to remove the trees and the structures at the defendant's costs.  He also prayed for the costs of this suit to be      awarded to him.

5.   The plaintiff through his advocate filed written submissions which I   have had occasion to look at. I have also considered the oral and   documentary evidence adduced and are on record.  The question for this court to answer is whether the plaintiff has proved there  has been encroachment on his land parcel Kwale/Bumbani  C/90.  The  plaintiff produced in evidence copy of title deed and certificate of official search (PEx.1 and 2) showing the land is indeed his. Before filing this suit, he also visited various government   departments to try to resolve this dispute but which did not bear   any fruit.

6.   On 1st December, 2011, the District Land Registrar and District  Surveyor visited the area.  This was after they had written to the owners of neighbouring plot vide their letter dated 10th August,   2011.  The Land Registrar prepared a report dated 19th February,   2013 which was produced as PExh. 4.  In para 3 of the report, it is  recorded;

"By the end of the exercise it was noted that Kwale/Bumbani  C/560 had   encroached on the parcel Kwale/Bumbani C/90 (as indicated on the map)."

The report by the Land Registrar is not conclusive as the map referred to was not  produced.  However in the plaintiff's list of documents, he referred to a report by the Surveyor   in item 3 of his list of documents.  The Surveyor's report is dated   7th December,  2012 in which the Surveyor observed the encroachment on   parcel 90 was by about 6 meters. He also observed the person   who has encroached  a Mr. Dominic Kimanthi  is not the registered   proprietor of the neighbouring plot C560.

7.   The plaintiff admitted the defendant was not present when the Land Registrar and Surveyor visited the land as he had not been    invited.  Neither did the plaintiff establish that it is the defendant who indeed put up the structures or planted the trees. I agree that the plaintiff' has established that his plot has been     encroached as per the documents on record but I am not satisfied that he has proved the same was done by the defendant.  Consequently, I grant the plaintiff permission  to cut down the trees and demolish the structures on the area encroached with security being provided by the local administration or nearby police station. Based on my the finding above, I will not condemn the defendant to pay any costs.

Dated and delivered in open court at Mombasa this 10th  day

of February 2015.

A. OMOLLO

JUDGE

10. 2.2015