Christine Andree Joshi & 2 others v Sally Chepwogen [2018] KEELC 4598 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiffs are the registered proprietors of the suit property
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.
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.
Whether the defendant is unlawfully occupying the suit land
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.
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.
Whether the plaintiffs are entitled to mesne profits
No - the claim for mesne profits of Kshs. 2,000 per month failed for want of strict proof.
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.
Whether the plaintiffs are entitled to general damages for trespass
Yes - general damages of Kshs. 150,000 awarded as trespass is actionable per se.
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.
Legal principles established
#- 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
#- 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.The Plaintiff is awarded Kshs. 150,000 as general damages for trespass
- 3.The defendant shall bear the costs of this suit
- Jurisdiction invoked
- Original civil jurisdiction over land claims; suit filed by Plaint dated 20th February, 2014
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.