Shereton Apartments Limited & 5 others v Wahu & 3 others (Environment & Land Case 620 of 2005) [2018] KEELC 4903 (KLR)
The bottom line
#A Kenyan court awarded six landowners over Kshs 97 million after holding that registered titles are conclusive proof of ownership and trespassers must pay for years of occupation.
What this practically means
#Executive summary
#Key legal issues
#Sanctity and conclusiveness of registered title
The plaintiffs' titles under grants registered under the Registration of Titles Act (repealed) and Section 26(1) of the Land Registration Act are conclusive evidence of ownership; the defendants had no right to encroach or trespass.
Section 23(1) of the repealed Registration of Titles Act made a certificate of title conclusive evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is a party. That framework was replicated in Sections 24, 25 and 26 of the Land Registration Act. Both regimes apply since the cause of action accrued in 2005 and continues. In the absence of controverting evidence from the defendants, the titles stand and trespass is proved.
Assessment of mesne profits for undeveloped land trespassed upon since 2005
Each plaintiff is awarded mesne profits between Kshs 15,000,000 and Kshs 20,000,000 against the defendants jointly and severally, taking account of location, size and the 13-year period of trespass.
A claim for mesne profits is compensation for deprivation of use and occupation of land, assessed at the current open market letting value for the period of trespass regardless of actual letting or use. Where trespass is proved, specific loss need not be shown. The suit properties are in Parklands, Nairobi, are undeveloped, and the trespass has run for 13 years since 2005; the court assessed reasonable damages in the unique circumstances of each parcel.
Legal principles established
#- A certificate of title is conclusive evidence of proprietorship and may be challenged only on fraud or misrepresentation attributable to the proprietor (or, under the Land Registration Act, illegality, unprocedurality or corrupt acquisition)
- Mesne profits are assessed according to the current open market letting value of the property for the period of trespass
- Where trespass is proved, specific damage or loss need not be proved for damages to be awarded
Court orders
#- 1.Judgment entered in favour of the plaintiffs against the defendants jointly and severally in terms of prayers (a) and (b) of the Amended Plaint (declaration of wrongful possession and eviction)
- 2.Mesne profits awarded: 1st plaintiff Kshs 15,000,000; 2nd plaintiff Kshs 15,000,000; 3rd plaintiff Kshs 17,000,000; 4th plaintiff Kshs 15,000,000; Estate of the Late Mary Jacinta Njeri Kshs 15,000,000; 6th plaintiff Kshs 20,000,000, all against the defendants jointly and severally
- 3.Interest on the above sums at court rate from the date of the judgment
- 4.Costs of the suit to the plaintiffs
- Jurisdiction invoked
- Original civil jurisdiction over claims relating to land (Environment and Land Court); suit instituted by plaint dated 23/5/2005
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shereton Apartments Limited & 5 others v Wahu & 3 others (Environment & Land Case 620 of 2005) [2018] KEELC 4903 (KLR)", Case Analysis (2018). Not stated in the judgment (plaint dated 23/5/2005, amended 15/1/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4903/eng@2018-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.