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ELCPartially AllowedNot stated in the judgment (arising from Milimani CMCC No. 4013 of 2000 consent)· [2017] KEELC 2908 (KLR)

Julius Gitonga Njoroge v Embakasi Ranching Co. Ltd & another [2017] KEELC 2908 (KLR)

Environment and Land Court
10 May 2017
KBK. BOR
1,389 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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The Plaintiff sued Embakasi Ranching Company Limited (1st Defendant) and another party (2nd Defendant) claiming a permanent injunction against reallocation of his plot issued under share certificate no. 14227, an order compelling the 1st Defendant to allocate a bonus plot and release title documents, an injunction against the 2nd Defendant's trespass and construction of a wall, damages for trespass, and costs. The dispute arose from a 1992 share purchase; the Plaintiff obtained share certificate no. 14227, and a consent recorded in Milimani CMCC No. 4013 of 2000 required the 1st Defendant to show him plot no. 1393 and grant a bonus quarter-acre plot upon payment of Kshs 6,000, which payment was made but the bonus plot never allocated. In July 2014 the 2nd Defendant, claiming allocation of the same plot, deposited building materials and erected a stone wall around plots 1393 and 1394, blocking the Plaintiff's access. Following an earlier ruling directing a survey, the surveyor's report confirmed the Plaintiff's structure stood on plot no. 1393, distinct from the 2nd Defendant's plots 3654 and 3655. The court found the Plaintiff to be the lawful owner of plot no. 1393, held that the 2nd Defendant's wall constituted trespass, and applied the principle that no proof of specific damage is required once trespass is established. The court found the claimed Kshs 1.5 million excessive and awarded Kshs 300,000 general damages, granted the reliefs sought in the plaint, and awarded the Plaintiff the costs of the suit. Judgment delivered by K. Bor, J, on 10th May 2017 at Nairobi.

Key legal issues

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01

Lawful ownership of plot no. 1393

Holding

The Plaintiff is the lawful owner of plot no. 1393 by virtue of share certificate no. 14227 and the consent in Milimani CMCC No. 4013 of 2000.

Reasoning

The Plaintiff produced the receipt for the share purchase and other receipts from 1992 relating to share certificate no. 14227, which the 1st Defendant issued in respect of plot no. 1393. The consent recorded in Milimani CMCC No. 4013 of 2000 confirmed the Plaintiff's ownership and obliged the 1st Defendant to point out the plot. The surveyor's report confirmed the Plaintiff's structure stood on plot no. 1393.

p. 2
02

Whether the 2nd Defendant's construction of a wall amounted to trespass

Holding

The erection of a stone wall around plots 1393 and 1394 by the 2nd Defendant constituted trespass on the Plaintiff's land.

Reasoning

The court-ordered survey established the physical locations of plots 1393 and 1394 and confirmed they are distinct from plots 3654 and 3655 which belong to the 2nd Defendant. The survey also confirmed the wall was erected around plots 1393 and 1394, encircling the Plaintiff's plot and blocking his access, which the court held amounted to trespass.

p. 2
03

Quantum of damages for trespass

Holding

The Plaintiff was awarded Kshs 300,000 as general damages for trespass.

Reasoning

The Plaintiff was forced out of the semi-permanent structure he occupied on plot no. 1393 and had to seek alternative accommodation. Citing Park Towers Limited and Duncan Nderitu Ndegwa, no proof of specific damage is required once trespass is established. The court found the pleaded figure of Kshs 1.5 million excessive and awarded Kshs 300,000.

p. 2

Legal principles established

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  • Where trespass to land is proved, a party need not prove any specific damage or loss to be awarded damages.
  • Once trespass to land is established, no proof of damage is necessary for an award of damages.

Court orders

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  1. 1.Permanent injunction restraining the 1st Defendant from reallocating the plot issued through share certificate no. 14227 to any other person
  2. 2.Order that the 1st Defendant allocates the Plaintiff a bonus plot and releases to the Plaintiff the documents over the two plots
  3. 3.Order that the 1st Defendant regularises the allocation of the two plots to the Plaintiff
  4. 4.Permanent injunction restraining the 2nd Defendant from trespassing on the Plaintiff's plot, constructing a perimeter wall or otherwise interfering with the Plaintiff's rights over the disputed land
  5. 5.General damages of Kshs 300,000 for trespass
  6. 6.Costs of the suit to the Plaintiff

Authorities

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Cases cited (2)

  • Park Towers Limited V John Mithamo Njika and 7 others
    [2014] eKLR
  • Duncan Nderitu Ndegwa V KPLC & Another
    [2013] eKLR
Jurisdiction invoked
Original civil jurisdiction of the court over the land dispute (provision not expressly cited in the 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, "Julius Gitonga Njoroge v Embakasi Ranching Co. Ltd & another [2017] KEELC 2908 (KLR)", Case Analysis (2017). Not stated in the judgment (arising from Milimani CMCC No. 4013 of 2000 consent). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2908/eng@2017-05-10

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