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ELCPartially AllowedELC Suit No. 1446 of 2013· [2017] KEELC 3731 (KLR)

Choice Lands Ltd v Nancy Wangui & 5 others [2017] KEELC 3731 (KLR)

Environment and Land Court (High Court of Kenya) at Milimani
20 January 2017
LGL. Gacheru
1,752 words in judgment
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The bottom line

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A Kenyan court confirmed a registered landowner's absolute right to evict occupants without title, awarding Kshs. 3 million in damages for trespass.

What this practically means

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Executive summary

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Choice Lands Ltd, the registered proprietor of LR No. 9042/311 in Embakasi, Nairobi, sued six defendants for eviction, mesne profits, and general damages for trespass, alleging they erected multi-storey and semi-permanent structures on the plot from 2010 without any colour of right. The defendants were served but neither entered appearance nor filed a defence, so the suit proceeded to formal proof on 5th May 2015, at which Allan George Njogu Kamau, a director of the plaintiff, testified. He produced the certificate of incorporation, memorandum of association, an official search, and the original grant issued by the Commissioner of Lands on 16th May 1997, following an informal transfer of an allotment letter originally issued to one Job Mutai. The court found that the certificate of title, issued under Section 23 of the repealed Registration of Titles Act and now protected by Sections 24 and 25 of the Land Registration Act, 2012, made the plaintiff the absolute and indefeasible owner, with the defendants' allegations remaining uncontroverted. The court held that the defendants' continued occupation was trespass and that the plaintiff had proved its case on a balance of probabilities. Judgment was entered for the plaintiff: the defendants were ordered to vacate and give vacant possession within 45 days, failing which eviction would issue; general damages for trespass of Kshs. 3,000,000 were awarded; mesne profits were refused because the plaintiff had no structures on the land and suffered no lost income; and the plaintiff received costs of the suit and was to serve notice of entry of judgment immediately.

Key legal issues

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01

Indefeasibility of the plaintiff's registered title

Holding

The plaintiff, as registered proprietor under a certificate of title issued under the Registration of Titles Act and protected by Sections 24 and 25 of the Land Registration Act, is the absolute and indefeasible owner of LR No. 9042/311

Reasoning

PW1, a director, produced the certificate of incorporation, memorandum of association, official search and the original grant issued by the Commissioner of Lands on 16th May 1997. Section 23 of the repealed Registration of Titles Act (Cap 281) made the certificate conclusive evidence of ownership, and this position is replicated in Section 26 of the Land Registration Act, 2012. No contrary evidence was adduced as the defendants did not enter appearance.

p. 3
02

Trespass and entitlement to vacant possession and general damages

Holding

The defendants' continued occupation without any title is trespass violating the plaintiff's rights under Section 25 of the Land Registration Act; they must give vacant possession and the plaintiff is entitled to general damages

Reasoning

The defendants were served with summons but neither entered appearance nor filed a defence, leaving the plaintiff's allegations uncontroverted. Since the plaintiff's title had not been revoked or cancelled, the defendants' remaining on the land was an act of trespass. The plaintiff proved its case on a balance of probabilities and was awarded general damages assessed at Kshs. 3,000,000.

p. 3
03

Mesne profits

Holding

Mesne profits refused because the plaintiff occupied no structures and suffered no loss of income from the defendants' presence

Reasoning

Mesne profits compensate a proprietor deprived of income from land. The evidence showed the plaintiff had never developed the suit land and therefore lost no rental income attributable to the defendants' occupation, unlike the defendants who allegedly earned Kshs. 100,000 per month from their own structures.

p. 3

Legal principles established

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  • A registered proprietor's title is absolute and indefeasible, subject only to challenge on grounds of fraud or misrepresentation to which the proprietor is a party

Court orders

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  1. 1.The Defendants to vacate the suit property and give vacant possession to the plaintiff within 45 days from the date of judgment; in default, eviction order to issue as prayed in prayer (a) of the plaint
  2. 2.General damages for trespass in the sum of Kshs. 3,000,000
  3. 3.The plaintiff is entitled to costs of the suit
  4. 4.The plaintiff to serve the defendants with a notice of entry of judgment immediately

Authorities

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Legislation

  • Registration of Titles ActSection 23 (Cap 281, now repealed)
  • Land Registration ActSection 26
  • Land Registration ActSection 24(a)
  • Land Registration ActSection 25(1)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Plaint filed under civil procedure; title claims under the Land Registration Act, 2012 and the Registration of Titles Act, Cap 281)

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, "Choice Lands Ltd v Nancy Wangui & 5 others [2017] KEELC 3731 (KLR)", Case Analysis (2017). ELC Suit No. 1446 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3731/eng@2017-01-20

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