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ELCPartially AllowedE.L.C. Case No. 266 of 2008· [2017] KEELC 1918 (KLR)

Ephraim Waithaka Rui & 2 others v Nadis Services Ltd & another [2017] KEELC 1918 (KLR)

Environment and Land Court
18 September 2017
1,253 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed landowners can win trespass damages without proving actual loss—and the State can be liable for issuing duplicate titles.

What this practically means

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Executive summary

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The Environment and Land Court at Nairobi (K. Bor, J) delivered judgment in E.L.C. Case No. 266 of 2008 on two remaining issues: whether damages were payable to the Plaintiffs for trespass, and who should bear the costs. The Plaintiffs, owners of L.R. Nos. 209/10999 and 209/11000, sued after the 1st Defendant entered the land and demolished their boundary fence. Judgment on admission had earlier been entered against the 2nd Defendant (Commissioner of Lands), whose defence admitted the Plaintiffs held the only proper titles, and by consent of 24/4/2017 a permanent injunction was issued restraining the 1st Defendant from interfering with the Plaintiffs' possession. The court found trespass by the 1st Defendant, which was admitted, and applied the principle that once trespass is established no proof of damage is necessary for an award of general damages. The peculiar circumstances were that the 2nd Defendant had issued two titles over the same parcel - the Plaintiffs' in 1993 and the 1st Defendant's in 2008 based on the 1st Defendant's misrepresentation that the land was unalienated. The court held the Commissioner, as custodian of the land register under sections 5 and 25 of the Registration of Titles Act (now repealed), could not be absolved, as due diligence would have exposed the misrepresentation; no evidence proved the 1st Defendant's fraud. The court awarded general damages of Kshs. 500,000/=, payable equally by both Defendants, rejecting the claims for Kshs. 3 million general and Kshs. 20 million punitive damages. Each Defendant was ordered to pay half the Plaintiff's costs.

Key legal issues

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01

Liability for trespass

Holding

The 1st Defendant trespassed on the Suit Properties, a fact admitted, so general damages for trespass are payable without proof of damage.

Reasoning

The court found that the 1st Defendant entered the Suit Properties and demolished the boundary fence, an act admitted by the 1st Defendant. Applying established authority, the court held that once trespass is established, no proof of damage is needed to award general damages. Liability was thus made out against the 1st Defendant.

p. 2
02

Responsibility of the Commissioner of Lands for duplicate titles

Holding

The 2nd Defendant, as custodian of the land register, was equally liable for issuing two titles over the same parcel because it failed to exercise due diligence and maintain the register as required by the Registration of Titles Act.

Reasoning

Under sections 5 and 25 of the Registration of Titles Act (now repealed), the Commissioner controlled land registration and the Registrar was required to keep a register with copies of all grants. Had the register been properly kept, the Commissioner would not have relied on the 1st Defendant's misrepresentation that the land was unalienated. The court therefore rejected the 2nd Defendant's plea to be absolved and apportioned liability and damages equally between the two Defendants. The court also found no evidence proving the 1st Defendant's fraud.

p. 3
03

Quantum of general damages for trespass

Holding

General damages of Kshs. 500,000/= were awarded, payable equally by both Defendants, falling short of the Kshs. 3 million sought.

Reasoning

The Plaintiffs sought Kshs. 3 million as general damages and Kshs. 20 million as punitive damages, relying on Titus Gatitu Njau v Municipal Council of Eldoret where Kshs. 15 million exemplary damages were awarded because court orders had been disobeyed. The court distinguished that context, noting the exemplary award there was meant to send a message that court orders must be obeyed, and here awarded a substantially lower general damages figure, split equally between the Defendants.

p. 3

Legal principles established

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  • Once trespass to land is established, no proof of damage is necessary for the court to award general damages.
  • The Commissioner of Lands, as custodian of the land register, cannot be absolved from responsibility for issuing two titles over the same parcel where due diligence was not exercised.

Court orders

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  1. 1.General damages of Kshs. 500,000/= awarded to the Plaintiffs, to be paid by both Defendants equally
  2. 2.Each Defendant to pay half the costs of the suit to the Plaintiff

Authorities

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Legislation

  • Registration of Titles Act (now repealed)section 5
  • Registration of Titles Act (now repealed)section 25

Cases cited (2)

  • Titus Gatitu Njau V. Municipal Council of Eldoret
    (2015) eKLR
  • Duncan Nderitu Ndegwa V. Kenya Pipeline Ltd and Another
    [2013] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (the suit properties L.R. No. 209/10999 and 209/11000)

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, "Ephraim Waithaka Rui & 2 others v Nadis Services Ltd & another [2017] KEELC 1918 (KLR)", Case Analysis (2017). E.L.C. Case No. 266 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1918/eng@2017-09-18

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