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ELCPartially AllowedELC 129 of 1999 (Sitting at Makueni)· [2018] KEELC 815 (KLR)

Kasolo Mutiso v Peter Mbai Kisilu [2018] KEELC 815 (KLR)

Environment and Land Court at Machakos
8 October 2018
2,244 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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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

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Executive summary

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This first-instance judgment of the Environment and Land Court at Machakos (sitting at Makueni) concerned neighbouring landowners in Kilembwa Location, Machakos County. The Plaintiff, owner of Wamunyu/Kilembwa/237, sued the Defendant, who resides on Wamunyu/Kilembwa/321 (registered in the name of the deceased Maingi Musembi), alleging that the Defendant blocked the public road of access separating the two parcels, diverted the road onto the Plaintiff's land, and uprooted barbed wire posts valued at Kshs. 2,300. The Plaintiff sought a declaration that his land is not traversed by a public road, an injunction, and general and special damages. The Defendant denied the claim, asserting the Plaintiff had blocked the road and that he merely unblocked it. The evidence, substantially recorded by earlier judges (Wendoh and Sitati JJ) and continued before the court, included testimony from a Deputy Land Registrar who produced a Survey of Kenya diagram showing a 9-metre public road between the parcels. The court found that the public road exists, is 9 metres wide, does not traverse the Plaintiff's land, and was diverted by the Defendant. Special damages of Kshs. 2,300 were refused because the value of the posts was never pleaded, but relying on Halsbury's Laws of England on trespass, the court held the Plaintiff entitled to nominal damages of Kshs. 100,000. Judgment was entered for the Plaintiff with a declaration, an injunction, Kshs. 100,000 general damages and costs of the suit.

Key legal issues

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01

Existence, size and location of the public road of access between the two parcels

Holding

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

Reasoning

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.

p. 3
02

Whether the Defendant wrongfully uprooted the barbed wire posts and entitlement to their value

Holding

Special damages of Kshs. 2,300 refused because the value of the posts was never pleaded

Reasoning

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.

p. 3
03

Whether the Defendant unlawfully diverted the public road onto the Plaintiff's land

Holding

Held that the public road was diverted and the Defendant committed the wrongful acts

Reasoning

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.

p. 3
04

Damages for trespass

Holding

Nominal/general damages of Kshs. 100,000 awarded for trespass even though actual loss was not established

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.An order of injunction restraining the Defendant from interfering with the Plaintiff's land in any way whatsoever
  3. 3.General damages of Kshs. 100,000
  4. 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

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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, "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.