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ELCPartially AllowedEnvironment & Land Case No. 5 of 2014· [2014] KEELC 60 (KLR)

Kokwomogh Marikapel v Musa Tinyang [2014] KEELC 60 (KLR)

High Court of Kenya at Kitale
18 December 2014
EOE. Obaga
762 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, the allottee of plot No. 604 (about 9½ acres) at Chepchoina Settlement Scheme Phase 1, sued the defendant seeking a declaration of sole allotment, injunctions, general and exemplary damages for trespass, and Ksh. 54,000/= for loss of user for 2013. The defendant, an administration police service corporal, was duly served but neither entered appearance nor filed defence despite being given time by the court, so the suit proceeded ex-parte by way of formal proof. The plaintiff testified that he was allotted the plot on 15/12/2009, paid the 10% deposit of Ksh. 5,120/=, took possession and built a house, but in March 2013 the defendant, accompanied by four administration police officers, chased him away, detained him in cells, ploughed the land and planted and harvested maize. The plaintiff produced the letter of allotment, deposit receipt, a settlement office letter confirming his allotment, and a demand letter. The court found the plaintiff the lawful allottee and held the defendant's conduct was an act of impunity and misuse of his police position, warranting exemplary damages. It awarded Ksh. 54,000/= for loss of user (9 acres at Ksh. 6,000/= per acre) and Ksh. 50,000/= exemplary damages, holding that general damages could not be added to the ascertained loss. Judgment was delivered at Kitale on 18 December 2014 by E. Obaga, J.

Key legal issues

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01

Title/allotment of settlement scheme plot

Holding

The plaintiff proved he was the lawful allottee of plot 604 through the letter of allotment, deposit receipt and confirmation letter from the settlement office.

Reasoning

The plaintiff produced a letter of allotment dated 15/12/2009, a receipt for the 10% deposit of Ksh. 5,120/=, a confirmation letter from the settlement office identifying him as allottee, and a demand letter. The defendant, though served, neither entered appearance nor filed defence, and the court found he had no defence to the claim.

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02

Trespass and remedies

Holding

The defendant's forceful entry, ploughing and planting on the suit land constituted trespass warranting loss of user damages and exemplary damages given the abusive use of police authority.

Reasoning

The defendant, an administration police corporal, chased the plaintiff away with four officers, detained him in cells, and ploughed and harvested the land. The court characterised this as impunity and misuse of office, justifying exemplary damages in addition to ascertained loss of user, but not general damages.

p. 2

Legal principles established

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  • General damages cannot be awarded in addition to an ascertained loss of user; exemplary damages may be awarded for egregious trespass.
  • A plaintiff's case proceeded to formal proof is proved on a balance of probabilities supported by documentary evidence.

Court orders

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  1. 1.A declaration that the plaintiff is the sole allottee of plot No. 604 in Chepchoina Phase 1 Settlement Scheme
  2. 2.A permanent injunction restraining the defendant from in any way interfering with the plaintiff's user of his plot
  3. 3.Ksh. 54,000/= for loss of user of the land in the year 2013
  4. 4.Exemplary damages of Ksh. 50,000/=
  5. 5.Costs of the suit and interest on the loss of user and exemplary damages from the date of judgment
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (not expressly stated in judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kokwomogh Marikapel v Musa Tinyang [2014] KEELC 60 (KLR)", Case Analysis (2014). Environment & Land Case No. 5 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/60/eng@2014-12-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.