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ELCAllowedELC No. 260 of 2017 (formerly Machakos ELC No. 224 of 2012)· [2017] KEELC 1068 (KLR)

kenya commercial bank limited (formerly Kenya Commercial Bank Ltd) v Stephen Kanyaru & 2 others [2017] KEELC 1068 (KLR)

Environment and Land Court
2 November 2017
1,737 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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KCB proved ownership of its Kajiado land with a title deed alone, winning eviction, injunctions, damages and costs against church trustees who never defended the case.

What this practically means

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Executive summary

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The Plaintiff bank sued three Methodist Church officials seeking a permanent injunction, a mandatory injunction, eviction, general damages for trespass and costs over land parcel LR No. 27009 (Grant No. IRN 6177), approximately three-quarters of an acre in Kajiado, allocated to the bank by the defunct Ol Kejuado County Council in October 1979 under a 99-year leasehold. The Defendants never entered appearance; interlocutory judgment was entered and the matter proceeded to formal proof on 10th July 2017, at which the Plaintiff called one witness, a KCB facilities and property manager, who produced the title and testified that a 2011 valuation revealed church structures encroaching on the land. The court framed six issues. Relying on sections 24(a) and 26(1) of the Land Registration Act, it found the Plaintiff was the absolute and indefeasible registered proprietor, the title being prima facie evidence unchallenged by any defence or rebuttal evidence. The presence of permanent structures was held to constitute proof of encroachment. On damages, although the Plaintiff led no evidence of loss, the court applied Duncan Nderitu Ndegwa v. KP&LC Limited & Another (2013) eKLR, holding trespass actionable per se, and awarded nominal general damages of Kshs 500,000. Judgment was entered for the Plaintiff as prayed, with a permanent injunction, a mandatory injunction to vacate and demolish structures, an eviction order, damages and costs. Dated and delivered at Kajiado on 2nd November 2017 by Christine Ochieng J.

Key legal issues

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01

Whether the Plaintiff is the legal proprietor of the suit land

Holding

Yes. The Plaintiff produced its title deed, was allocated the land by the defunct Ol Kejuado County Council in October 1979 and holds a 99-year lease; the Defendants never filed a defence or adduced rebuttal evidence.

Reasoning

PW1 produced the title as exhibit '1'. The court relied on sections 24(a) and 26(1) of the Land Registration Act, which vest absolute ownership in a registered proprietor and render the certificate of title prima facie evidence of absolute and indefeasible ownership, subject only to fraud, misrepresentation or illegality. No defence was filed to challenge the title.

p. 3
02

Whether the Defendants encroached on the suit land

Holding

Yes. Permanent structures constructed by the Defendants on the land constitute proof of encroachment.

Reasoning

PW1 testified that a 2011 valuation by Premier Valuers revealed encroachment, and that the Defendants had put up permanent structures and refused to remove them. The court held that the presence of permanent structures on the land was itself proof of encroachment, and the Defendants failed to appear and controvert the evidence.

p. 3
03

Whether the Plaintiff is entitled to general damages for trespass despite leading no evidence of loss

Holding

Yes. Trespass being actionable per se, general damages were awarded at a nominal Kshs. 500,000.

Reasoning

PW1 did not adduce evidence quantifying the loss incurred. However, relying on Duncan Nderitu Ndegwa v KP&LC Limited & Another (2013) eKLR, where P. Nyamweya J held trespass to be actionable per se with no proof of damage necessary, the court found the Plaintiff suffered damages from the Defendants' trespass and awarded nominal damages.

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04

Whether the Defendants should be evicted and permanently restrained

Holding

Yes. Having constructed permanent structures without any colour of right and having failed to contest the claim, the Defendants were to be evicted and restrained.

Reasoning

From PW1's evidence and the photographs, the Defendants had constructed permanent structures on the Plaintiff's land without any colour of right and failed to come to court to controvert the Plaintiff's evidence. Judgment was entered for the Plaintiff as prayed, with permanent injunction, mandatory injunction and eviction orders issuing.

p. 3

Legal principles established

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  • Registration of a person as proprietor of land vests in that person absolute ownership of the land together with all rights and privileges appurtenant thereto (Land Registration Act, section 24(a)).
  • A certificate of title is prima facie evidence that the named proprietor is the absolute and indefeasible owner, challengeable only on grounds of fraud or misrepresentation or where acquired illegally, unprocedurally or through a corrupt scheme (Land Registration Act, section 26(1)).
  • Trespass to land is actionable per se and no proof of damage is necessary for the court to award general damages.

Court orders

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  1. 1.A permanent injunction restraining the Defendants, their servants and/or agents from alienating, entering, trespassing on, building structures on, dumping materials on, or in any manner interfering with the Plaintiff's parcel LR No. IRN 27009 (Grant No. IRN 6177)
  2. 2.A mandatory injunction compelling the Defendants, their servants and/or agents to forthwith vacate the suit property, remove any equipment or personal effects dumped or stored on it, and demolish any buildings erected on LR No. 27009 (Grant No. IRN 6177)
  3. 3.An eviction order against the Defendants, their servants or agents from LR No. 27009 (Grant IRN 6177)
  4. 4.General damages for trespass awarded at Kshs. 500,000
  5. 5.Costs of the suit to the Plaintiff

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)

Cases cited (1)

  • Duncan Nderitu Ndegwa v. KP& LC Limited & Another
    (2013) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (environmental and land claims), the suit having been transferred from Machakos ELC No. 224 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, "kenya commercial bank limited (formerly Kenya Commercial Bank Ltd) v Stephen Kanyaru & 2 others [2017] KEELC 1068 (KLR)", Case Analysis (2017). ELC No. 260 of 2017 (formerly Machakos ELC No. 224 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1068/eng@2017-11-02

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