Diphas Wafula Wanyonyi v Richard Kituyi [2018] KEELC 4813 (KLR)
The bottom line
#A Bungoma court ordered a neighbour to vacate one acre of encroached land after the owner proved title with a title deed and official search.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiff is the registered owner of the suit land Bokoli/Chwele/2018
- 2.Whether the defendant has encroached upon and unlawfully occupied part of the suit land
- 3.What remedies should issue
Key legal issues
#Proof of ownership and encroachment at formal proof
The plaintiff proved registered ownership of the suit land and the defendant's encroachment of approximately one acre on a balance of probabilities
At formal proof following the defendant's failure to enter appearance or file a defence, the plaintiff produced his statement dated 28/2/2017, a title deed dated 18th October 2013, mutations dated 07/12/2000 and a search certificate dated 27/2/2017. The court was satisfied that these documents proved ownership and the extent of the encroachment, entitling the plaintiff to an order for vacation and eviction.
Legal principles established
#- A plaintiff who proves registered title to land on a balance of probabilities is entitled to an order for vacatur/eviction of an encroaching neighbour even in default proceedings
Court orders
#- 1.The defendant to move out and vacate the suit land forthwith
- 2.Failing which, the court broker will evict him with the assistance of the O.C.S. Chwele Police Station at the defendant's cost
- 3.The plaintiff to have the costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil suit under the Civil Procedure Rules; formal proof under order 10 rule 9 of the Civil Procedure Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I do order that the defendant to move out and vacate the suit land forthwith. Failing which the court broker of this court will evict him out with the assistant of the O.C.S. Chwele Police Station at the defendants cost.
I am equally satisfied that the defendant has encroached on the same to the extent of one acre on balance of probabilities.
Issues in the judgment
#The judgment refers to the title deed as being for parcel Bokoli/Chwele/2028 while the suit land is described as Bokoli/Chwele/2018, an apparent discrepancy in the parcel number
The case number of the suit is not stated anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Diphas Wafula Wanyonyi v Richard Kituyi [2018] KEELC 4813 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4813/eng@2018-01-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.