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ELCAllowedELC Case No. 771 of 2017 (Machakos ELC Case No. 114 of 2009)· [2018] KEELC 2439 (KLR)

Michael Nganga Kibunja v Michael Githongori [2018] KEELC 2439 (KLR)

Environment and Land Court
10 July 2018
COChristine Ochieng
1,611 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed landowners can win trespass damages without proving actual loss.

What this practically means

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Executive summary

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The Environment and Land Court at Kajiado, per Christine Ochieng J, delivered judgment in a first-instance claim by Michael Nganga Kibunja against Michael Githongori concerning Plot No. 45/Business Isenya Trading Centre. The Plaintiff sought a permanent injunction, an eviction order, general damages for trespass, costs and interest. The Defendant entered appearance, filed only a replying affidavit asserting he was building on Plot No. 442/Residential Isinya, did not file a defence and did not attend the hearing despite service, so the suit proceeded ex parte. PW1 adopted his witness statement and produced a Letter of Allotment originally issued to Paul Saoli Ole Nchake by the Ol Kejuado County Council, a Letter of Transfer to the Plaintiff, rate payment receipts and Certificates of Official Search. The court framed four issues: ownership, trespass and eviction, general damages, and costs. It found the Plaintiff the legal owner on the basis of uncontroverted documentary evidence, and the Isinya Development Plan showed Plot 45 lies in zone 5 designated commercial while Plot 442 claimed by the Defendant is residential. Trespass was accordingly established. Although the Plaintiff led no evidence of loss, the court followed Duncan Nderitu Ndegwa v KP&LC Limited that trespass is actionable per se and awarded Kshs. 100,000 as general damages. The court entered judgment for the Plaintiff, issuing a declaration of ownership, general damages, a permanent injunction and an eviction order, with costs to the Plaintiff.

Key legal issues

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01

Ownership of the suit land

Holding

The Plaintiff established legal ownership of plot number 45/Business Isenya Trading Centre through uncontroverted documentary evidence

Reasoning

PW1 produced a Letter of Allotment in the name of Paul Saoli Ole Nchake, a Letter of Transfer to himself, rate payment receipts and Property Search Certificates. The County Government of Kajiado records listed the Plaintiff as owner. The Defendant did not controvert this evidence, so the Plaintiff proved ownership on a balance of probability.

p. 2
02

Trespass and eviction

Holding

The Defendant was constructing on the suit land without any right and was guilty of trespass warranting eviction

Reasoning

The Isinya Development Plan showed plot 45/business is in zone 5 designated for commercial plots, while the Defendant's claimed plot 442 is residential, indicating different plots. Having not attended court or controverted the Plaintiff's averments, the Defendant's claim failed, and he had no legal or colour of right to construct on the land.

p. 2
03

General damages for trespass

Holding

General damages for trespass are awardable without proof of actual loss, and the Plaintiff was awarded Kshs. 100,000

Reasoning

Although PW1 did not adduce evidence of loss incurred, the court was persuaded by the authority in Duncan Nderitu Ndegwa v KP&LC Limited, which held trespass is actionable per se, and found the Plaintiff suffered damages from the Defendant's acts of trespass, awarding Kshs. 100,000 as general damages.

p. 2

Legal principles established

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  • Once trespass to land is established it is actionable per se and no proof of damage is necessary for the court to award general damages

Court orders

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  1. 1.A declaration that the Plaintiff is the legal owner of plot number 45/Business Isenya Trading Centre
  2. 2.Judgment for the Plaintiff against the Defendant in the sum of Kshs. 100,000/= as general damages for trespass
  3. 3.A permanent injunction restraining the Defendant, his agents and/or servants from harassing, threatening, intimidating, trespassing upon, constructing or interfering with the Plaintiff's plot known as number 45/Business Isenya Trading Centre
  4. 4.An order of eviction against the Defendant, his agents and/or servants from the Plaintiff's plot known as number 45/Business Isenya Trading Centre
  5. 5.Costs of the suit awarded to the Plaintiff
Jurisdiction invoked
Environment and Land Court, first-instance civil suit over ownership, trespass and eviction

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, "Michael Nganga Kibunja v Michael Githongori [2018] KEELC 2439 (KLR)", Case Analysis (2018). ELC Case No. 771 of 2017 (Machakos ELC Case No. 114 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2439/eng@2018-07-10

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