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ELCDismissedELC Case No 18 of 2013· [2018] KEELC 1751 (KLR)

Charles Odhiambo Kandege v District Officer-Nyakach, Chief Thurdibuoro Location & Terrazo Enterprises Limited [2018] KEELC 1751 (KLR)

Environment and Land Court
5 September 2018
SKS.M KIBUNJAJOJ.O. OLOLA
2,010 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a trespass claim because the land had been sold by the owner's late father, showing paperwork proving a sale can defeat even a registered title claim.

What this practically means

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Executive summary

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The Plaintiff, son and administrator of the estate of the late Vitalis Ndege (registered proprietor of Kisumu/Koguta West/611), sued the District Officer-Nyakach, the Chief of Thurdibuoro Location and Terrazo Enterprises Limited, seeking a permanent injunction, a declaration that his late father was the proprietor, mesne profits, costs and interest. He averred that the Defendants entered the land in 2011 and began constructing offices without consent. The 1st and 2nd Defendants, through the Attorney General, filed a defence denying the claim and asserted in a Replying Affidavit that the land was part of 7.2752 acres donated by Terrazzo Enterprises Ltd to West Nyakach Divisional Committee under a Memorandum of Understanding dated 14th March 2011, having been purchased from the deceased by a Sale Agreement dated 21st December 2004 for Kshs 429,428/- paid by cheque. The Plaintiff testified as the sole witness; the Defendants called none. The court found the land was registered in the deceased's name in 1975 and the grant issued to the Plaintiff in 2012, but held that the Defendants' entry was justifiable given the sale to Terrazzo Enterprises Ltd and donation to the Divisional Committee. The court further found the 3rd Defendant probably never served, since the company search named 'Terrazzo Company Ltd'. The suit was dismissed with no order as to costs.

Key legal issues

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01

Whether the Defendants' entry and construction on Kisumu/Koguta West/611 constituted trespass

Holding

No - the entry was justifiable because the land had been bought from the Plaintiff's father by Terrazzo Enterprises Ltd and donated to West Nyakach Divisional Committee

Reasoning

Although the registered proprietor was the deceased Vitalis Ndege, the Defendants produced a Sale Agreement dated 21st December 2004 showing Terrazzo Enterprises Ltd bought 1.2239 acres from the deceased for Kshs 429,428/- paid by cheque, and a Memorandum of Understanding dated 14th March 2011 donating the land for construction of West Nyakach Divisional offices. The Plaintiff was not cross-examined on these documents and the court found the entry justifiable, hence no trespass.

p. 4
02

Whether the 3rd Defendant was properly served with the suit

Holding

The 3rd Defendant was likely not served at all, as the company search sought particulars of 'Terrazzo Company Ltd' rather than 'Terrazzo Enterprises Ltd'

Reasoning

The court observed that while the Sale Agreement correctly named the company as Terrazzo Enterprises Ltd, the Registrar of Companies search attached to the Further Affidavit sought particulars of Terrazzo Company Ltd. In the absence of evidence that the 3rd Defendant is also known as Terrazzo Company Ltd, the court concluded the 3rd Defendant was not served with the suit papers, explaining its failure to enter appearance.

p. 4

Legal principles established

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  • Trespass is an unjustifiable entry by one person upon land in the possession of another
  • Entry onto land pursuant to a purchase from the registered proprietor is justifiable and defeats a claim of trespass

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.No order as to costs

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, "Charles Odhiambo Kandege v District Officer-Nyakach, Chief Thurdibuoro Location & Terrazo Enterprises Limited [2018] KEELC 1751 (KLR)", Case Analysis (2018). ELC Case No 18 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1751/eng@2018-09-05

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