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ELCPartially AllowedELC. Case No. 402 of 2012· [2018] KEELC 475 (KLR)

Samuel Waweru Mwangi v George Muniu Kinuthia [2018] KEELC 475 (KLR)

Environment and Land Court
6 December 2018
KBK. BOR
488 words in judgment
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The bottom line

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A registered landowner in Kenya won eviction and an injunction against a squatter, but modest damages because he couldn't prove his actual financial loss.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of Dagoretti/Thogoto/T.394, purchased from several vendors under a sale agreement dated 27/11/2009, sued the Defendant for eviction, an injunction, general damages for trespass and mesne profits, and costs. He alleged that the Defendant encroached in July 2011, uprooted fencing poles and beacons and remained in possession. The Defendant, whose defence was struck out and whose appeal against striking out is pending before the Court of Appeal, contested how the Plaintiff acquired the property, claiming cautions were removed in unclear circumstances and that the Plaintiff bought with notice of his claim. The Defendant did not dispute that the Plaintiff is the registered owner. In evidence the Plaintiff produced the sale agreement, an official search, the abstract of title and court orders, including the order of 15/1/2009 in HCCC No. 2863 of 1993 under which the Defendant's father, Moses Kinuthia (now deceased), was evicted. On the pleadings, evidence and submissions, the court was satisfied on a balance of probability that the Plaintiff owned the land and that the Defendant's encroachment entitled the Plaintiff to eviction and an injunction. On damages, the court accepted the Defendant's submission that the claim for Kshs. 1 million general damages and Kshs. 10,000/= monthly mesne profits was unsupported by evidence of loss, and instead awarded general damages of Kshs. 100,000/= as reasonable. Judgment was delivered at Nairobi on 6th December 2018 by K. Bor, Judge, granting prayers i and ii of the Plaint and the general damages award.

Key legal issues

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01

Whether the Plaintiff proved ownership of the suit property

Holding

The court found the Plaintiff is the registered owner of Dagoretti/Thogoto/T.394, having purchased it vide a sale agreement dated 27/11/2009, proved by the sale agreement, search, abstract of title and court orders.

Reasoning

The Plaintiff testified and produced the sale agreement showing how he purchased the land, together with a search, abstract of title and court orders including the eviction order of 15/1/2009 in HCCC No. 2863 of 1993 against the Defendant's father. The Defendant did not contest the fact of registration, only how the land was acquired, and the court was satisfied on a balance of probability.

p. 2
02

Whether the Defendant's encroachment entitled the Plaintiff to eviction, injunction and damages

Holding

The court found the Defendant encroached in July 2011, uprooted fencing poles and beacons, and took possession, and granted eviction, injunction and general damages of Kshs. 100,000/=.

Reasoning

The Defendant encroached and remains on the land. The Defendant's challenge to how the Plaintiff acquired the property did not defeat the registered owner's claim. Damages were reduced because no evidence of actual loss was led, with Kshs. 100,000/= considered reasonable.

p. 2

Legal principles established

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    Court orders

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    1. 1.Eviction of the Defendant and his agents from the suit property (prayer i of the Plaint)
    2. 2.Injunction restraining the Defendant and his agents from remaining on the suit land (prayer ii of the Plaint)
    3. 3.General damages of Kshs. 100,000/= for trespass
    4. 4.Costs of the suit to the Plaintiff
    Jurisdiction invoked
    Article 162(2)(b) of the Constitution establishing the Environment and Land Court (implied; land ownership and trespass claim over Dagoretti/Thogoto/T.394)

    Key timeline

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    Practical implications

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    Frequently asked questions

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    Later judgments citing this (2)

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    Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

    Cite this brief

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    Cite this brief

    Caselaw, "Samuel Waweru Mwangi v George Muniu Kinuthia [2018] KEELC 475 (KLR)", Case Analysis (2018). ELC. Case No. 402 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/475/eng@2018-12-06

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