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ELCDismissedEL/C No. 570 of 2008 (formerly High Court (ELC) No. 570 of 2008 – Nairobi)· [2018] KEELC 4260 (KLR)

Rahab Mumbi Kimani v Damaris Wanjiku Gachoka [2018] KEELC 4260 (KLR)

Environment and Land Court
26 February 2018
PNP. M. Njoroge
13,553 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~54 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a trespass claim because survey evidence showed the two parcels never shared a boundary, and the plaintiff failed to prove encroachment.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of Henry Kimani Kagonye, sought permanent and mandatory injunctions, general damages for trespass and costs, alleging the defendant had encroached on parcel Muguga/Gitaru/1994 by depositing construction materials, fencing and altering boundaries via a 2001 subdivision of her parcel Muguga/Gitaru/1634 (formerly 68), allegedly blocking an 18-metre road (C63) and absorbing land and road reserve belonging to the estate. The defendant denied encroachment, asserting the two parcels are separated by the C63 road with no common boundary, that the construction materials were debris from a two-storey building demolished for the Southern Bypass, and that the plaintiff lacked locus standi. The court directed joint site visits by the District Surveyor and District Land Registrar, whose 2017 report found the disputed portion measured only 0.0094 hectares and that the 18m road had been shifted to the position of a 4m road, though the two parcels remained separated by road. The court found PW1 to be an untruthful witness regarding compensation for the 1971 acquisition, noted discrepancies in acreages, and preferred the evidence of the defendant's surveyors. Holding that the plaintiff had not proved trespass on a balance of probabilities, the court dismissed the suit and awarded costs to the defendant.

Key legal issues

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01

Whether the defendant encroached upon the plaintiff's land as claimed

Holding

The plaintiff failed to prove encroachment; the suit was dismissed.

Reasoning

The court relied on survey evidence including the joint District Surveyor/Land Registrar report and the reports of licensed surveyors Aganyo and Ng'ang'a, which established that the two parcels are separated by the C63 road and share no common boundary. The disputed 0.0094 Ha belonged to parcel 1994 only in respect of the blocked 18m road, and the alleged building materials lay on the defendant's own land. PW1 was found untruthful regarding compensation for the 1971 acquisition.

p. 25
02

The court's jurisdiction over the trespass claim

Holding

The ELC has jurisdiction to determine the trespass claim notwithstanding the defendant's objection.

Reasoning

The defendant's advocate argued the court lacked jurisdiction to deal with unlawful trespass within these proceedings. The court rejected this, holding that the ELC handles all matters concerning land and environment and may decide issues of jurisdiction as they arise on a case-by-case basis.

p. 24
03

Credibility of the plaintiff's evidence

Holding

PW1 was found to be an untruthful witness.

Reasoning

PW1 swore that his father was never compensated for the 1971 road diversion, but Gazette Notice No. 3738 of 8th October 1971 listed Henry Kimani among persons invited to submit compensation claims. The court also found the plaintiff still retained land compulsorily acquired by the government, an area larger than the disputed portion, undermining the claim.

p. 25

Legal principles established

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  • A plaintiff asserting trespass bears the burden of proving encroachment on a balance of probabilities, and that burden was not discharged where expert survey evidence established the parcels did not share a common boundary
  • The Environment and Land Court has jurisdiction to determine claims of unlawful trespass on land within its proceedings
  • Written submissions cannot substitute for evidence taken before the court; the court record prevails

Court orders

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  1. 1.The suit is dismissed
  2. 2.Costs are awarded to the defendant, costs following the event

Authorities

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Legislation

  • The Constitution of KenyaArticle 159
  • Registered Land ActCap 300
  • Land Registration ActNo. 3 of 2012, sections 18(1), 20, 21
  • Land ActNo. 6 of 2012
  • Survey ActCap 299

Cases cited (8)

  • The Law Society of Kenya Nairobi Branch versus Malindi Law Society
    Civil Appeal No. 287 of 2016
  • Independent Electoral and Boundaries Commission & Another –vs- Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Alex Wainaina t/a John Commercial Agencies v Janson Mwangi Wanjihia
    [2015] eKLR
  • Serah Njeri Mwobi vs John Kimani Njoroge
    [2013] eKLR
  • Antony Gachara Ayub v Francis Muhinda Thinwa
    [2014] eKLR
  • Nation Media Group Limited v Cradle – The Children’s Foundation Suing through Geoffrey Maganya
    [2016] eKLR
  • Julian Adoyo Ongunga & Another v Francis Kiberenge Bondeva (suing as the Administrator of the estate of Fanuel Evans Amudavi, deceased)
    [2016] eKLR
  • Republic v Commissioner of Lands & Another Exparte Hammerheads Limited
    [2013] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over all matters concerning land (ELC Act); the court affirmed 'the ELC Court has the jurisdiction to handle all matters concerning land and environment'

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, "Rahab Mumbi Kimani v Damaris Wanjiku Gachoka [2018] KEELC 4260 (KLR)", Case Analysis (2018). EL/C No. 570 of 2008 (formerly High Court (ELC) No. 570 of 2008 – Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4260/eng@2018-02-26

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