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ELCPartially AllowedNot stated in the judgment excerpt· [2018] KEELC 4598 (KLR)

Christine Andree Joshi & 2 others v Sally Chepwogen [2018] KEELC 4598 (KLR)

Environment and Land Court
26 January 2018
1,412 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kericho court ordered a woman occupying land she lost at auction to vacate within three months and pay costs, but refused unproven rental compensation.

What this practically means

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Executive summary

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The plaintiffs, administrators of the estate of the late Jimmy Joshi, sued for vacant possession, mesne profits and general damages for trespass over parcel KERICHO/CHEMAGEL/1401, which their late father purchased at a public auction in March 2002 after the land was charged to Oriental Commercial Bank (formerly Delphis Bank) by the defendant's late husband. The defendant, who had earlier sued to challenge the auction in HCCC No. 1150 of 2002 - a suit dismissed for want of prosecution in July 2010 - filed a defence and counterclaim seeking cancellation of the plaintiffs' title and a permanent injunction, but neither she nor her advocate attended the hearing, which proceeded ex parte on 10th October 2017. The court framed five issues. On ownership, the uncontroverted evidence and produced title deed established the plaintiffs as registered proprietors by transmission, entitled to indefeasibility under Sections 24, 25 and 26 of the Land Registration Act and constitutional protection under Article 40. On occupation, the defendant's continued presence after notice to vacate amounted to trespass. The claim for mesne profits of Kshs. 2,000 per month failed because, being special damages, it required strict proof and no valuation report was produced. Relying on Park Towers and Duncan Nderitu Ndegwa, the court held trespass actionable per se and awarded general damages of Kshs. 150,000. The suit was allowed in part: vacant possession within three months failing which eviction may be sought, general damages of Kshs. 150,000, and costs to the plaintiffs.

Key legal issues

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01

Whether the plaintiffs are the registered proprietors of the suit property

Holding

Yes - the plaintiffs, as administrators of the estate of their late father who purchased the land at a public auction, were registered through transmission and hold an indefeasible title under the Land Registration Act.

Reasoning

The 1st Plaintiff gave uncontroverted evidence and produced the title deed and supporting documents showing transmission to the plaintiffs as administrators. Sections 24, 25(1) and 26 of the Land Registration Act vest absolute ownership and protect the title from challenge except for fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme. Article 40 of the Constitution also guarantees property rights.

p. 2
02

Whether the defendant is unlawfully occupying the suit land

Holding

Yes - the defendant's continued occupation after a notice to vacate and the dismissal of her earlier suit for want of prosecution amounts to trespass.

Reasoning

The defendant was served notice to vacate but refused, instead filing a suit (HCCC No. 1150 of 2002) challenging the sale, which was dismissed for want of prosecution in July 2010. Having no right over the land, her continued occupation constitutes trespass to land.

p. 2
03

Whether the plaintiffs are entitled to mesne profits

Holding

No - the claim for mesne profits of Kshs. 2,000 per month failed for want of strict proof.

Reasoning

Mesne profits are special damages which must be specifically pleaded and strictly proved. The plaintiffs produced no valuation report to justify the monthly rate claimed, so the material before the court was insufficient to warrant an award of special damages.

p. 2
04

Whether the plaintiffs are entitled to general damages for trespass

Holding

Yes - general damages of Kshs. 150,000 awarded as trespass is actionable per se.

Reasoning

Following Park Towers Ltd and Duncan Nderitu Ndegwa, once trespass is proved no specific damage need be shown and damages are assessed on the unique circumstances of each case. The court considered Kshs. 150,000 adequate compensation for the infringement of the plaintiffs' right to use and enjoy the land.

p. 2

Legal principles established

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  • Special damages must be both specifically pleaded and strictly proved
  • Trespass to land is actionable per se and no proof of damage is necessary
  • A registered proprietor's title is indefeasible except on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or corruption

Court orders

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  1. 1.The defendant shall vacate the parcel of land known as L.R No KERICHO CHEMAGEL/1401 within 3 months from the date hereof failing which the plaintiffs may apply for an eviction order
  2. 2.The Plaintiff is awarded Kshs. 150,000 as general damages for trespass
  3. 3.The defendant shall bear the costs of this suit

Authorities

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Legislation

  • Land Registration ActSection 24
  • Land Registration ActSection 25(1)
  • Land Registration ActSection 26
  • Constitution of KenyaArticle 40; Article 40(3)

Cases cited (3)

  • Hahn V Singh
    Civil Appeal No 42 of 1983 [1985] KLR at p. 717
  • Park Towers Ltd V John Mithamo Njika and 7 Others
    [2014] eKLR
  • Duncan Nderitu Ndegwa V Kenya Power and Lighting Company Limited & Another
    (2013) eKLR
Jurisdiction invoked
Original civil jurisdiction over land claims; suit filed by Plaint dated 20th February, 2014

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, "Christine Andree Joshi & 2 others v Sally Chepwogen [2018] KEELC 4598 (KLR)", Case Analysis (2018). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4598/eng@2018-01-26

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