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ELCPartially AllowedOthaya ELC Appeal (from Othaya PMCC No. 17 of 2012)· [2015] KEELC 758 (KLR)

Esther Wambui Gakiria & another v Mathew Waweru Gakiria [2015] KEELC 758 (KLR)

Environment and Land Court
21 April 2015
LWL N Waithaka
4,167 words in judgment
View original judgmentRead on Kenya Law Watch case
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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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This is a first appeal to the Environment and Land Court at Othaya against the judgment of Hon. R.K. Langat (R.M) in Othaya PMCC No. 17 of 2012, in which the respondent, as registered proprietor of Othaya/Gura/954, obtained eviction orders and general damages of Kshs. 100,000 for trespass against the appellants. The suit property was carved out of the estate of Samuel Gakiria (deceased) through Succession Cause No. 39 of 2006 at Karatina, under which the appellants' representative received one acre elsewhere, while the portion the appellants occupied fell in the parcel registered to the respondent. The appellants, who did not participate in the succession proceedings, contended that their one acre should have been carved where their structures stood or that they be compensated about Kshs. 922,000. The court, applying Selle v Associated Motor Boat Co, re-evaluated the evidence and upheld the finding of trespass: the appellants became trespassers upon the respondent's registration and notice to vacate, and their claims to compensation or re-allocation failed because they were not pleaded or counter-claimed, parties being bound by their pleadings. However, the court found the damages excessive since the respondent proved no loss, and reduced the award to Kshs. 30,000. The appeal partially succeeded; the appellants were awarded half the costs of the appeal. Judgment dated, signed and delivered on 21st April 2015 by L N Waithaka, Judge.

Key legal issues

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01

Whether the appellants were trespassers on the suit property

Holding

The finding of trespass was upheld; upon registration of the respondent as proprietor and issuance of notices to vacate, the appellants became trespassers

Reasoning

The suit property was registered in the respondent's name pursuant to a succession cause in which the appellants did not participate. The appellants' occupation predated sub-division, but they never pleaded a counter-claim challenging the respondent's title or claiming compensation. A registered proprietor's rights are protected, and claims must flow from pleadings.

p. 7
02

Whether the award of general damages of Kshs. 100,000 was justified

Holding

The damages were found excessive and reduced to Kshs. 30,000

Reasoning

Trespass is actionable per se without proof of damage, but the respondent did not demonstrate the loss he sustained from the appellants' continued stay. Taking into account the circumstances that led the appellants onto the property, a minimal award was appropriate.

p. 7
03

Whether unpleaded claims for compensation for structures could be entertained

Holding

No; parties are bound by their pleadings and the appellants' claim for Kshs. 922,000 compensation failed for want of pleading or counter-claim

Reasoning

The trial magistrate correctly held that although the appellants testified they sought compensation for structures, they neither pleaded this nor filed a counter-claim. The court relied on Dakianga Distributors on the binding nature of pleadings.

p. 4

Legal principles established

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  • A first appellate court must re-evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses
  • Parties are bound by their pleadings; a defence based on compensation for structures not pleaded or counter-claimed cannot suffice
  • Trespass to land is actionable per se and no proof of damage is required, but where no loss is demonstrated the damages awarded will normally be minimal

Court orders

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  1. 1.The judgment of the lower court on the question of trespass is upheld
  2. 2.The general damages for trespass of Kshs. 100,000 awarded by the trial court are set aside and substituted with an award of Kshs. 30,000
  3. 3.The appellants, having partially succeeded, are awarded half costs of the appeal

Authorities

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Legislation

  • Registered Land Act (Cap 300, repealed)sections 27, 28, 29, 30
  • Land Registration Act No. 3 of 2012sections 25 and 26
  • Law of Succession Act (Cap 160)

Cases cited (10)

  • Selle v. Associated Motor Boat Company Ltd & Others
    1968 EA 123
  • Ndiritu Vs Ropkoi & Another
    (2004) eKLR
  • Peters V Sunday Post Ltd
    1958 EA 424
  • Dakianga Distributors (K) Ltd v. Kenya Seed Company Ltd
    (2015) eKLR
  • Charles Gaitho Kiarie v Samuel Kinyanyui Gaitho (As the Personal Representative of the Estate of Mary Wambui Njabuya) & another
    (2014) eKLR
  • Simon Njage Njoka v. Simon Gatimu Kanyi
    (2007) eKLR
  • Republic v. Attorney General Exparte Kamau and Another
    KLR ELC, 441
  • Muchoki –vs- Mwangi
    (2005) eKLR
  • Muriuki Marigi –VS- Richard Marigi Muriuki, Lydia Njoki Muriuki & Another
    Civil Appeal No. 189 of 1996 (unreported)
  • M'Ikiara M'Rinkanya and another
On appeal from
Principal Magistrate's Court, Othaya
Othaya PMCC No. 17 of 2012
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's decision in Othaya PMCC No. 17 of 2012

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, "Esther Wambui Gakiria & another v Mathew Waweru Gakiria [2015] KEELC 758 (KLR)", Case Analysis (2015). Othaya ELC Appeal (from Othaya PMCC No. 17 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/758/eng@2015-04-21

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