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ELCPartially AllowedNot stated in the judgment· [2018] KEELC 1337 (KLR)

Mulinge Kilungu Kikwau v William Matilu Kikuvi [2018] KEELC 1337 (KLR)

Environment and Land Court (implied - land dispute decided by a Judge sitting in Machakos)
12 October 2018
OAO.A. Angote
1,159 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiff sued the Defendant claiming ownership of land parcel Kalama/Iiuni/919, alleging that in 2005 the Defendant trespassed on the parcel, commenced construction and erected a wall around the property. He sought an order compelling the Defendant to demolish the structures and exemplary damages of Kshs. 25,000 per month from 2005 until payment in full. The Plaintiff produced a Title Deed showing registration as owner of parcel 919 on 8th July 2009 and explained that he had bought parcel 960 from the Defendant's father but exchanged it with neighbour Haroun Mathew, who had developed it by mistake. A District Surveyor's report dated 18th May 2011, with an annexed diagram, showed that the Defendant, proprietor of the adjacent parcel 165, had erected a building encroaching on parcel 919. The Defendant admitted building on his father's plot and walling the Plaintiff's premises, but contended the Plaintiff had developed parcel 165, not 919, and that the Plaintiff's plot was 960. His surveyor (DW2) asserted the official map did not tally with the ground but filed no rival report or sketch map. The Defendant also argued that the court lacked jurisdiction, the dispute being a boundary matter for the Registrar of Land. The court found the Plaintiff had proved encroachment on a balance of probabilities. However, damages of Kshs. 25,000 per month were not proved. The court allowed the Plaint in part, issuing a permanent injunction restraining the Defendant from dealing with parcel 919, ordering him and his agents to vacate the parcel and demolish any structure or wall built on or around it, with costs of the suit to the Plaintiff.

Key legal issues

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01

Whether the Defendant encroached on the Plaintiff's parcel Kalama/Iiuni/919

Holding

Yes - on the surveyor's report of 18th May 2011 and the diagram of the Iiuni Registration Section, the Defendant encroached on parcel 919

Reasoning

The Plaintiff held a Title Deed for parcel 919 registered on 8th July 2009. The District Surveyor's report and annexed diagram showed the proprietor of parcel 165 (the Defendant) had erected a building on parcel 919. The Defendant's surveyor (DW2) merely asserted the map did not tally with the ground but filed no rival report or sketch map to assist the court. The court thus preferred the official survey evidence and found encroachment proved on a balance of probabilities.

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02

Whether the Plaintiff proved damages for the encroachment

Holding

No - damages were not proved and were refused

Reasoning

The Plaintiff claimed exemplary damages of Kshs. 25,000 per month from 2005, asserting he used to generate that amount from the plot before the Defendant took over. Apart from that assertion, no evidence of actual loss was adduced. The court found the claim of damages not proved and declined to award any damages, granting only injunctive and demolition relief.

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03

The Defendant's objection that the court lacked jurisdiction as this was a boundary dispute for the Registrar of Land

Holding

The objection did not prevail; the suit proceeded as a trespass/encroachment claim and was determined on its merits

Reasoning

The Defendant's advocate argued the dispute was a boundary dispute which the Registrar of Land should have dealt with. The court did not uphold the objection, instead proceeding to determine the encroachment claim on the surveyor's report and registry diagram. Nothing in the final orders suggests the suit was referred to the Registrar; judgment was entered for the Plaintiff on the claim.

p. 1

Legal principles established

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    Court orders

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    1. 1.A permanent injunction restraining the Defendant, his agents, servants or employees from entering upon, remaining thereon, sub-dividing, digging on, excavating, fencing, building or otherwise dealing with parcel of land known as Kalama/Iiuni/919
    2. 2.The Defendant and/or his agents to vacate parcel number Kalama/Iiuni/919 and to demolish any structure or wall that they have built on or around the parcel
    3. 3.The Defendant to pay the costs of the suit
    Jurisdiction invoked
    Original civil jurisdiction over a trespass/land claim; challenged by the Defendant who argued the dispute was a boundary dispute for the Registrar of Land

    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, "Mulinge Kilungu Kikwau v William Matilu Kikuvi [2018] KEELC 1337 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1337/eng@2018-10-12

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