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ELCPartially AllowedPlaint dated 27th September, 2007 (amended 1st November, 2018)· [2018] KEELC 487 (KLR)

C.K.K Estate (1973) Limited v County Government of Kiambu & another [2018] KEELC 487 (KLR)

Environment and Land Court
5 December 2018
GOG.M.A Ong'ondo
2,195 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kiambu County was ordered to pay a landowner Kshs.250,000 and stop using a road it graded through private land without lawful acquisition.

What this practically means

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Executive summary

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The Plaintiff, a limited liability company, sued the County Government of Kiambu (1st defendant) and a 2nd defendant over the grading of an alleged public road measuring approximately 500 m by 8.1 metres through Land Parcel No. L.R. 134/8 C.K.K. Njunu Estate in Kiambu County in September 2007, destroying mature coffee trees. The Plaintiff sought a declaration that no public road passes through the parcel, a permanent injunction against trespass, and general and punitive damages. The 1st defendant asserted the road existed since about 1958 and that the public had acquired prescriptive rights; the 2nd defendant denied owning a grader or participating in the road's creation. The suit, originally before the High Court (Justice A. Muchelule), was transferred to the Environment and Land Court, Thika. The court condensed the issues to whether the Plaintiff was the registered proprietor, whether the Defendants trespassed, and whether the Plaintiff was entitled to the reliefs sought. Relying on unchallenged testimony of a director, a Land Registrar and a surveyor, and on the original deed plan and survey maps, the court found no road of access existed and no subdivision, surrender or compulsory acquisition had created one. The requirements of sections 86, 144(2) and 147(a) of the repealed Local Government Act and Articles 10 and 40 of the Constitution were not followed; title is inviolable and indefeasible absent lawful procedure. The court entered judgment for the Plaintiff jointly and severally against both Defendants: a declaration, a permanent injunction, and general and exemplary damages of Kshs.250,000/=, with costs to the Plaintiff.

Key legal issues

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01

Whether the Plaintiff is the registered proprietor of the suit property

Holding

Yes - the Plaintiff proved title through a Certificate of Incorporation, a conveyance under the Government Lands Act and unchallenged testimony of the Land Registrar

Reasoning

PW1 identified the Certificate of Incorporation and the conveyance documents of title; PW2, a Land Registrar, confirmed the Plaintiff was registered proprietor as at 13th July 2010 with no encumbrances. The 1st Defendant's counsel did not cross-examine PW2, so the testimony remained unchallenged and steadfast.

p. 2
02

Whether there is a public road passing through the suit property and whether the Defendants trespassed

Holding

No public road existed; the Defendants' entry and grading of a road through the property was unlawful trespass

Reasoning

PW4, a surveyor, produced the original deed plan and survey maps showing no road of access, no subdivision, surrender or compulsory acquisition to create one. The requisites of the repealed Local Government Act (sections 86, 144(2) and 147(a)) for acquisition by a local authority were not followed, so the purported public road was created without due process.

p. 3
03

What remedies flow from the trespass

Holding

Declaration, permanent injunction and general and exemplary damages of Kshs.250,000/= on a balance of probability

Reasoning

The court distinguished mere nominal damages because the Defendants damaged mature coffee trees and dug trenches, acting oppressively, arbitrarily and unconstitutionally, justifying punitive/exemplary damages assessed at Kshs.250,000/=, guided by Philip Aluchio and James Njeru.

p. 3

Legal principles established

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  • Trespass is any unjustifiable entry by one person upon land in possession of another, including removing part of the soil
  • A registered title to land is inviolable and indefeasible and can only be defeated by a lawful procedure
  • Compulsory land acquisition must be carried out in strict conformity with constitutional provisions, procedural requirements and in good faith
  • Where no evidence of the value of damage is adduced, trespass attracts nominal damages

Court orders

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  1. 1.Declaration that there is no public road passing through Land Parcel No. L.R. 134/8 C.K.K. Njunu Estate
  2. 2.Permanent injunction restraining the Defendants, their servants, agents, employees and any person claiming under them from trespassing on, entering, erecting, developing or creating a road through L.R 134/8 C.K.K. Njunu Estate
  3. 3.General and exemplary damages for trespass at Kshs.250,000/= entered jointly and severally against the Defendants
  4. 4.Costs of the suit borne by the Defendants

Authorities

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Legislation

  • Companies Act (Cap 456 Laws of Kenya)incorporation of the Plaintiff
  • Constitution of Kenya, 2010Article 176
  • County Governments Act2013
  • Constitution of Kenya, 2010Article 40(3); Article 40; Article 10
  • Local Government Act (repealed)Sections 86, 144(2), 147(a)
  • Government Lands Actconveyance of the suit property

Cases cited (9)

  • Kigika Developers Ltd vs Nairobi City Commission
    KLR (E & L) 1 217
  • New Munyua Sisal Estates Ltd vs Attorney General
    (1972) EA 88
  • Galaxy Paints Ltd vs Falcon Grants Ltd
    (2000) 2EA 385
  • Great Lakes Transport Company (V) Ltd vs Kenya Revenue Authority
    (2009) KLR 720
  • Zacharia Onsongo Momanyi vs Evans Omurwa Onchagwa
    (2014) eKLR
  • Eunice Grace Njambi Kamau & Another vs The Hon. Attorney General & 4 others
    (2013) eKLR
  • Philip Aluchio vs Crispus Ngayo
    (2014) eKLR
  • James Njeru vs Erickson Kenya Ltd
    (2015) eKLR
  • Abudulhamed Ebrahim Ahmed vs Municipal Council of Mombasa
    (2004) eKLR
Jurisdiction invoked
Original civil suit transferred from the High Court, Nairobi on 21st March, 2017 for further hearing and determination

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "C.K.K Estate (1973) Limited v County Government of Kiambu & another [2018] KEELC 487 (KLR)", Case Analysis (2018). Plaint dated 27th September, 2007 (amended 1st November, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/487/eng@2018-12-05

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