Pamela Waithera Mburu v County Government of Kajiado [2018] KEELC 4062 (KLR)
The bottom line
#A Kenyan court ordered Kajiado County to pay a landowner Kshs. 2.1 million for building an ungazetted road through her titled land.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff is the legal proprietor of the suit property known as title number Kajiado/Kitengela/22811
- 2.Whether the Defendant has trespassed on the Plaintiff's land and demarcated a road traversing it
- 3.Whether the Defendant and or his agents/servants should be permanently restrained from interfering with the Plaintiff's enjoyment and quiet possession of the suit land
- 4.Whether the Plaintiff is entitled to Special damages, General Damages, Mesne profits and Exemplary Damages
- 5.Who will pay costs of the suit
Key legal issues
#Whether the Plaintiff is the legal proprietor of the suit property
Yes; the Plaintiff's certificate of title was prima facie proof of ownership, uncontroverted as the Defendant filed no defence
PW1 produced her title deed, Certificate of Official Search, Mutation Form and Registry Index Map. The court relied on section 26(1) of the Land Registration Act, which renders a certificate of title prima facie evidence of absolute and indefeasible ownership. The Defendant filed no defence and did not attend court, so the evidence stood uncontroverted.
Whether the Defendant trespassed by demarcating a road through the suit land
Yes; the road traversing the land to the Governor's residence was not shown on the RIM and no gazette notice was produced, amounting to trespass
The Registry Index Map produced in court showed no road passing through the suit land. The Defendant did not controvert the evidence, furnished no gazette notice, and its officer removed the Plaintiff's barrier and fence. Demand letters went unanswered. On this uncontroverted material the court found the demarcation of the road through the middle of the land constituted trespass.
Whether a permanent injunction should issue against the Defendant
Yes; as registered absolute proprietor the Plaintiff's vested rights should not be interfered with, and the Defendant proved no claim over the land
Relying on section 24(a) of the Land Registration Act and the Ahmed Ibrahim Suleiman authority, the court found that registration vests absolute ownership and appurtenant rights. The Defendant, having filed no defence and proved no claim over the suit land, should be permanently restrained from interfering with the Plaintiff's peaceful and quiet possession.
Whether the Plaintiff was entitled to special, general and exemplary damages
Special damages of Kshs. 110,000 proved; general damages of Kshs. 1,000,000 awarded as trespass is actionable per se; exemplary damages of Kshs. 1,000,000 awarded for the County's arbitrary conduct
The uncontroverted evidence proved Kshs. 50,000 fencing costs and Kshs. 60,000 valuation fees. Although no loss was quantified for trespass, trespass being actionable per se, general damages were awarded following Duncan Nderitu Ndegwa. Exemplary damages followed Titus Gatitu Njau, the County having failed to give notice or gazette the road, demolished the fence without colour of right, conduct the court termed impunity contrary to the Fair Administrative Action Act.
Legal principles established
#- A certificate of title is prima facie evidence that the person named as proprietor is the absolute and indefeasible owner of the land
- Trespass to land is actionable per se and no proof of damage is necessary for the court to award general damages
- Exemplary damages may be awarded where there is oppressive, arbitrary or unconstitutional action by servants of the government
- Registration of a person as proprietor of land vests in that person absolute ownership together with all rights and privileges appurtenant thereto
Court orders
#- 1.Judgment entered for the Plaintiff against the Defendant in the sum of Kshs. 2,100,000 comprising Kshs. 1,000,000 general damages for trespass, Kshs. 1,000,000 exemplary damages and Kshs. 110,000 special damages
- 2.A declaration issued that the plaintiff is the absolute proprietor of land parcel Kajiado/Kitengela/22811
- 3.A permanent injunction restraining the Defendant, its agents and/or servants from harassing, threatening, intimidating, trespassing upon, demolishing or in any manner interfering with the Plaintiff's suit property known as title number Kajiado/Kitengela/22811
- 4.Costs of the suit awarded to the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court jurisdiction over land disputes) - the judgment does not expressly cite the provision, being filed as a plaint under the Land Registration Act and ELC procedure
Relief refused
#Mesne profits
The property was vacant and undeveloped per the valuation report and no evidence was adduced to prove mesne profits
Restoration of the suit land to its prior status / relocation to an alternative parcel
The court instead granted a declaration of ownership, injunction and monetary damages; compensation for acquisition and relocation was not granted
Costs
The costs of the suit are awarded to the Plaintiff.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That judgement is hereby entered for the Plaintiff against the Defendant in the sum of Kshs. 2, 100,000/= comprising of Kshs. 1,000,000/= as general damages for trespass; Kshs. 1, 000,000 as exemplary damages and Kshs. 110,000 as Special damages.
That a declaration be and is hereby issued, as against the defendant, the plaintiff is the absolute proprietor of land parcel Kajiado/Kitengela/22811.
A permanent injunction be and is hereby issued restraining the Defendant either by itself, its agents and or servants from harassing, threatening, intimidating, trespassing upon, demolition and or in any manner whatsoever interfering with the Plaintiff's suit property known as title number Kajiado/Kitengela/22811.
The costs of the suit are awarded to the Plaintiff.
I find that the Defendant has indeed trespassed on the suit land by demarcating a road that traversed the middle of it.
I note the Plaintiff failed to adduce any evidence to prove Mesne profits and will hence not award it.
These actions are indeed a sign of impunity which is contrary to the Fair Administration Act and ought to be curtailed.
Issues in the judgment
#The judgment refers to 'the Fair Administration Act' but the statute's correct name is the Fair Administrative Action Act, and it is cited without provision
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kuria & 3 others v Muriithi & another (Environment and Land Case E034 of 2025) [2026] KEELC 1941 (KLR)[2026] KEELC 1941 (KLR)26 Feb 2026
Cite this brief
#Cite this brief
Caselaw, "Pamela Waithera Mburu v County Government of Kajiado [2018] KEELC 4062 (KLR)", Case Analysis (2018). ELC Case No. 620 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4062/eng@2018-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.