Kasolo Mutiso v Peter Mbai Kisilu [2018] KEELC 815 (KLR)
The bottom line
#A Kenyan landowner who diverted a public road onto his neighbour's land was ordered to pay Kshs 100,000 and keep off the land.
What this practically means
#Executive summary
#Key legal issues
#Existence, size and location of the public road of access between the two parcels
A 9-metre public road of access exists between parcels 237 and 321, as shown on the Survey of Kenya diagram; the Plaintiff's land is not traversed by any public road
The court relied on the evidence of the Deputy Land Registrar (PW2), who produced the Survey of Kenya diagram and abstracts of the registers showing the parcels are not adjoining and are separated by a 9-metre road of access. The Plaintiff's testimony corroborated this. The court held the Plaintiff's land is not traversed by a public road and that the road was diverted.
Whether the Defendant wrongfully uprooted the barbed wire posts and entitlement to their value
Special damages of Kshs. 2,300 refused because the value of the posts was never pleaded
The Defendant's counsel correctly submitted that no value of the posts was pleaded in the plaint; the Plaintiff himself admitted he did not plead the number of damaged posts and had no receipts. The court therefore declined to award special damages, treating the claim under general/nominal damages for trespass instead.
Whether the Defendant unlawfully diverted the public road onto the Plaintiff's land
Held that the public road was diverted and the Defendant committed the wrongful acts
Relying on the evidence of the Deputy Land Registrar and the Plaintiff, who saw the Defendant uprooting boundary markings, the court found the road between the two parcels was diverted. The Plaintiff was found entitled to the prayers sought and to nominal damages despite failure to establish actual loss.
Damages for trespass
Nominal/general damages of Kshs. 100,000 awarded for trespass even though actual loss was not established
The court invoked Halsbury's Laws of England (4th Ed, Vol 45) on damages for trespass, holding that a plaintiff who proves trespass is entitled to nominal damages even without actual loss. Applying this, it assessed Kshs. 100,000 as sufficient general damages in the circumstances.
Legal principles established
#- A plaintiff who proves trespass is entitled to nominal damages even absent proof of actual loss
- Special damages must be specifically pleaded to be recoverable
- Civil claims are decided on a balance of probabilities
Court orders
#- 1.Declaration that the Defendant's actions are wrongful and unlawful as no public road passes/cuts through the Plaintiff's Land parcel No. Wamunyu/Kilembwa/237
- 2.An order of injunction restraining the Defendant from interfering with the Plaintiff's land in any way whatsoever
- 3.General damages of Kshs. 100,000
- 4.Costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land (agreed issue 8: jurisdiction of the court to hear and determine the suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kasolo Mutiso v Peter Mbai Kisilu [2018] KEELC 815 (KLR)", Case Analysis (2018). ELC 129 of 1999 (Sitting at Makueni). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/815/eng@2018-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.