Albert Kanake Kariuki t/a Kivangua Investment v County Council of Embu [2018] KEELC 4409 (KLR)
The bottom line
#The Embu court confirmed a plot owner's title against a county council's repossession attempt, but cut his trespass damages tenfold to Kshs 100,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff was the allottee and proprietor of the suit property
Yes - allocation and issuance of certificate of lease were proved and unchallenged
The Plaintiff testified that he applied for allocation in 1986, received a letter of allotment from the Commissioner of Lands and a certificate of lease in 1990 in the name of his business partners. This evidence was unchallenged as the Defendant did not attend the hearing.
Whether the Defendant had power to re-possess the suit property
No - only a court of law could cancel a title upon registration
The property was registered under the (now repealed) Registered Land Act. The court held that upon registration only a court of law could effect cancellation of title, save for limited statutory exceptions such as the National Land Commission's power to review grants and dispositions of public land. The council had no legal authority to repossess.
Whether the suit property was public utility land and its alienation irregular, illegal and void
No - not proven, as the Defendant adduced no evidence
These issues arose from the defence and counterclaim. Since the Defendant did not attend court despite service, no evidence was tendered to demonstrate that the property was reserved for a public car/bus park or that the alienation was irregular, illegal or void. The burden of proving these assertions lay on the Defendant and was not discharged.
Whether the Plaintiff was entitled to general damages for trespass
Yes, but only Kshs 100,000/- and not the Kshs 1,000,000/- sought
The court accepted that trespass to land is actionable per se on the authority of Obadiah K. Macharia v Kenya Power and Lighting Co Ltd and Duncan Nderitu Ndegwa v KPLC Limited. However, since the authority cited awarded only Kshs 100,000/-, the court saw no justification for the higher figure claimed.
Legal principles established
#- Once trespass to land is established it is actionable per se and no proof of damage is necessary before general damages can be awarded
- Only a court of law can effect cancellation of a title upon registration under the Registered Land Act
- Costs follow the event unless the court for good reason orders otherwise under section 27 of the Civil Procedure Act
Court orders
#- 1.Prayers (a) and (b) of the plaint dated 6th May 2004 are granted as prayed
- 2.The Plaintiff is awarded general damages for trespass to land in the sum of Kshs 100,000/-
- 3.The Plaintiff is awarded costs of the suit and counterclaim together with interest thereon at the rate provided for in section 27 of the Civil Procedure Act (Cap 21)
- 4.The Defendant's counterclaim is dismissed with costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property (Ngandori/Kirigi/2035/1)
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.
- William Nembe Obora and 73 others v Rift Valley Railways (Kenya) Limited [2018] KEELRC 1288 (KLR)[2018] KEELRC 1288 (KLR)10 Aug 2018applied
Cite this brief
#Cite this brief
Caselaw, "Albert Kanake Kariuki t/a Kivangua Investment v County Council of Embu [2018] KEELC 4409 (KLR)", Case Analysis (2018). E.L.C. Case No. 136 of 2015 (Formerly Kerugoya 679 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4409/eng@2018-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.