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ELCPartially Allowed· [2018] KEELC 2715 (KLR)

Lamet Leiyagu v Attorney General [2018] KEELC 2715 (KLR)

Environment and Land Court
28 June 2018
JKJ G Kemei
3,371 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered the Kenya Defence Forces to pay Kshs 3 million for occupying a private Nanyuki plot for a decade, confirming a title deed trumps even military claims.

What this practically means

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Executive summary

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The Plaintiff, registered owner of Parcel No. Nanyuki Municipality Block 2/19 (Kilimo) measuring 0.0873Ha purchased from Charity Naitore Murungi, sued the Laikipia Airbase for unlawful eviction on 5/1/2006, occupation of his land until February 2016, and destruction of property valued at Kshs 1,500,000. He sought a declaration of ownership, a permanent injunction, general damages including for non-user, and special damages. The Defendant denied trespass, claiming the Plaintiff occupied airbase land. The court framed four issues: ownership, trespass, loss and damage, and entitlement to general damages. Relying on sections 24(a) and 26 of the Land Registration Act, 2012 and Article 40 of the Constitution, the court held the Plaintiff is the absolute and indefeasible registered owner and that the suit land was never part of the airbase. The Land Registrar and District Surveyor corroborated this, the latter confirming that a joint Government/KDF survey on 24/9/15 established the airbase had encroached, leading to relocation of its fence in February 2016. The court found unauthorized entry, invasion, eviction and trespass by the Defendant. It awarded special damages of Kshs 1.5 million, applying the rule that special damages must be pleaded and specifically proved (citing Charles Sande v Kenya Cooperative Creameries), and rejected the Defendant's demand for approved building plans. General damages of Kshs 1.5 million were awarded for the illegal eviction, occupation and trespass, having regard to the forceful entry, size of land and duration. However, no damages were awarded for non-user of the land for want of supporting evidence such as a valuation report. Judgment was entered for the Plaintiff with a declaration of ownership, permanent injunction, both sets of damages, costs and interest at court rates.

Key legal issues

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01

Ownership of the suit land

Holding

The Plaintiff is the duly registered and indefeasible owner of Nanyuki Municipality Block 2/19 (Kilimo), which was never part of the airbase land.

Reasoning

The Plaintiff produced a title deed, green card and official search showing registration on 26/3/01, corroborated by the Land Registrar who confirmed the land belongs to the Plaintiff and was never part of the airbase. Section 26 of the Land Registration Act, 2012 makes a certificate of title prima facie evidence of absolute and indefeasible ownership, and section 24(a) vests absolute ownership in the registered proprietor. The joint survey also confirmed the parcels are distinct.

p. 3
02

Trespass and unlawful eviction by the Defendant

Holding

The Defendant unlawfully evicted the Plaintiff, encroached on and occupied his land from January 2006 to February 2016 without any legal basis.

Reasoning

Evidence from the Land Registrar and District Surveyor showed the land lies outside the airbase boundary and that a joint survey on 24/9/15 established encroachment, after which the airbase relocated its fence in February 2016. DW1 admitted a verbal notice and the involvement of the District Commissioner on the eviction date. The eviction and occupation had no basis in law and contradicted the constitutional protection of property under Article 40.

p. 4
03

Special damages for destroyed property

Holding

Special damages of Kshs 1,500,000 proved and awarded; the Defendant's demand for approved building plans rejected.

Reasoning

The Plaintiff pleaded and itemised the loss, produced a list of damaged property, receipts and photographs, and the District Surveyor testified to debris denoting demolished settlements. DW1 did not rebut this evidence. Applying the rule that special damages must be pleaded and specifically proved, the court accepted the claimed Kshs 1.5 million, discounting only legal fees, and held approved plans unnecessary for rural houses.

p. 4
04

General damages for trespass and for non-user

Holding

General damages of Kshs 1,500,000 awarded for the illegal eviction, occupation and trespass; no damages for non-user for want of proof.

Reasoning

Having found the eviction, occupation and trespass illegal, the court awarded general damages considering the forceful entry, size of the land, duration of occupation and the Defendant's disregard of technical advice from the Land Registrar and District Surveyor. However, the claim for loss from non-user failed because no valuation report or evidence of lost income or alternative accommodation costs was tendered.

p. 4

Legal principles established

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  • A certificate of title is prima facie evidence that the registered proprietor is the absolute and indefeasible owner of the land.
  • Special damages must not only be pleaded but also specifically proved.
  • Registration as proprietor vests absolute ownership of land together with all rights and privileges appurtenant thereto.

Court orders

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  1. 1.A declaration that the LR. NO NANYUKI MUNICIPALITY BLOCK 2/19 (KILIMO) measuring 0.0873 belongs to the Plaintiff.
  2. 2.A permanent injunction against the Defendant (Laikipia Airbase /Kenya Defence Forces), its agents, servants and/or any other person acting on their behalf from interfering with the Plaintiff's enjoyment and user of the suit land.
  3. 3.General damages in the sum of Kshs 1,500,000/-
  4. 4.Special damages in the sum of Ksh. 1,500,000/-
  5. 5.Cost of the suit
  6. 6.Interest on general damages, special damages and costs at Court rates until settlement in full

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Land Registration Act, 2012Section 26
  • Land Registration Act, 2012Section 24(a)
  • Registration of Titles Act (repealed)
  • Registration of Lands Act, Cap 300 (repealed)Section 27

Cases cited (1)

  • Charles Sande Vs. Kenya Cooperative Creameries
    (1992) LLR 314
Jurisdiction invoked
Original civil suit for declaration, injunction and damages for trespass (Land Registration Act, Article 40 of the Constitution)

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, "Lamet Leiyagu v Attorney General [2018] KEELC 2715 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2715/eng@2018-06-28

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