Sometimes the government can trespass against someone’s land as an in easement that is not registered at the ministry of lands without the owner’s consent. This is because for a government to acquire land it must be through the Compulsory Acquisition of Land under the Land Act 2012 in Kenya hence one needs to pursue the following steps in disputing his or her claim in the land.
1. Set up the grounds of your claim.
The main significant issue is to be able to prove whether indeed you are the legal registered proprietor of the land under the Land Registration Act no. 12 of 2015. Further, a person should also indicate how the government failed to acquire the land though compulsory acquisition and establish where the easement or wayleave trespassed in your parcel land.
2. Process for the Summons to issue to the government.
The issue of summons is done in respect to the section 13A of the Statutory Notice in Government Proceedings. The same is also attached to the supporting affidavit under Miscellaneous Application in court which will highlight the ground of the intention to sue and the relevant facts in support of the case.
3. Gather relevant evidence in support of your case.
The Evidence Act Cap 80 gives directives on how evidence should be adduced in court therefore an advocate acting for the claimant is supposed to provide original title deeds or the certificate of lease to prove ownership. Survey maps, photos of the land in which the easement has been created, expert report from surveyor or land valuer can also be essential to the evidence in support.
4. Substantiate the respective Jurisdiction in which the land is located.
Identify the respective jurisdiction to save the courts time in the process of concluding the case. All the matters with a valuation of 20 million and above are filed in the environment and land court in Kenya and below the amount are filed in the lower court in terms of pecuniary Jurisdiction. This is because the land court has been vested with powers to handle land disputes matter under section 162 (2)(b) of the Constitution of Kenya, 2010.
5. Advance on the court’s proceedings.
During the courts’ proceeding the advocates on record can make an application for a site visit of the land in dispute and have an illumination of the easement the trespassed in the applicant’s land. This helps in establishing whether there is any breach of constitutional rights of the Plaintiff and compare notes with the land registrar through the Attorney General as a defendant in the matter and confirm whether the easement was registered in their land registers.
6. Remedies issued in court.
Most probably the remedies given will be the Injunctive reliefs before the hearing and determination of the main suit, compensation for breach of constitutional rights, Declaratory Orders and Damages.