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ELCPartially AllowedNot stated in the judgment as provided (Murang'a ELC suit)· [2019] KEELC 59 (KLR)

Mukunya Mugo A & another v Elizabeth Mugure Mukunya [2019] KEELC 59 (KLR)

Environment and Land Court
11 December 2019
2,115 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Murang'a court ordered an aunt to vacate family land within 90 days but refused to pay compensation because the claim was never properly proved.

What this practically means

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Executive summary

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The Plaintiffs, grandchildren of the late Livingstone Mukunya Mugo, sued the Defendant, their aunt, seeking a declaration that they are joint trustees and owners of LOC.1/KIUNYU/172 (approximately 3.41 hectares) held in trust for Mukunya Mugo B, together with an eviction order, a permanent injunction, mesne profits from coffee sales, and costs. They averred that the patriarch gifted the suit land to the minor beneficiary and registered the Plaintiffs as joint trustees, and that the Defendant was permitted only temporary residence in 2004 after selling land allotted to her. The Defendant was served twice but filed neither appearance nor defence. The 2nd Plaintiff testified; the court had the benefit of the green card, title, transfer documents and a 1999 Land Control Board consent showing registration of the Plaintiffs as joint trustees. Applying Sections 24, 25 and 26 of the Land Registration Act, the court found the Plaintiffs duly registered as joint trustees, their rights subject only to their trustee obligations. Relying on authority that trespass is an injury to a possessory right, and noting the Defendant's failure to controvert the claim, the court found her in continuing trespass. However, mesne profits, being special damages, had to be pleaded and proved; the Plaintiffs adduced no evidence substantiating any figure, so that prayer was declined. The court granted the declaration, an eviction order with 90 days to vacate supervised by the OCS Kirwara Police Station, and a permanent injunction, with no orders as to costs. Judgment delivered at Murang'a on 11 December 2019 by J G Kemei, Judge.

Key legal issues

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01

Whether the Plaintiffs are registered joint trustees of the suit land

Holding

The court found the Plaintiffs are registered as joint trustees of the suit land, as captured in the green card and title's proprietorship section

Reasoning

The court considered Sections 24, 25 and 26 of the Land Registration Act on the effect of registration and indefeasibility, subject to trustee obligations under Section 25(2). Documentary evidence including the green card, title, transfer documents and 1999 Land Control Board consent confirmed registration of the Plaintiffs as joint trustees holding the land for Mukunya Mugo B.

p. 2
02

Whether the Defendant is a trespasser

Holding

The court found the Defendant in continuous trespass, her continued occupation having no justiciable justification

Reasoning

The Defendant was served twice and did not file a defence or controvert the claim. Applying the definition of trespass and the principle that a possessor with title may sue, the court held that continuing trespass occurs from day to day and that, absent contrary evidence, there was no justification for her continued occupation since 2005 despite demands to vacate.

p. 3
03

Whether the Plaintiffs were entitled to mesne profits

Holding

The claim for mesne profits was declined for failure to plead and prove the amounts

Reasoning

Mesne profits are in the nature of special damages and must be specifically pleaded and proved. No specific sum was claimed and no evidence was placed before the court demonstrating how any figure would be calculated. Relying on Peter Mwangi Mbuthia, Karanja Mbugua, and Horsford v Bird on the valuation formula, the court found the claim unsubstantiated.

p. 3

Legal principles established

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  • The proper plaintiff in an action for trespass to land is the person with title to it or in possession at the time of the trespass
  • Mesne profits must be both pleaded and proved as special damages

Court orders

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  1. 1.A declaration that the Plaintiffs as joint trustees are the owners and proprietors jointly of LOC.1/KIUNYU/172 held in trust for Mukunya Mugo 'B' and that the Defendant's occupation is illegal and amounts to trespass
  2. 2.An eviction order against Elizabeth Mugure Mukunya requiring her to vacate the suit premises at her own cost within 90 days from the date of judgment
  3. 3.In default, eviction to ensue
  4. 4.The OCS Kirwara Police Station to supervise the eviction to ensure maintenance of law and order
  5. 5.A permanent injunction restraining the Defendant from entering, cultivating, occupying or interfering with LOC.1/KIUNYU/172
  6. 6.No orders as to costs

Authorities

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Legislation

  • Land Registration ActSection 24
  • Land Registration ActSection 25
  • Land Registration ActSection 26
  • Trespass ActSection 3(1)
  • Civil Procedure ActOrder 21, Rule 13

Cases cited (6)

  • Charles Ogejo Ochieng -v- Geoffrey Okumu
    (1995) eKLR
  • Entick Vs Carrington
    (1765)
  • Peter Mwangi Mbuthia & Another vs. Samow Edin Osman
    [2014] eKLR
  • Karanja Mbugua & Another vs. Marybin Holding Co. Ltd
    [2014] eKLR
  • Dr. J K Bhakthavasala Rao –v- Industrial Engineers, Nellore
    AIR 2005 AP 438
  • Horsford vs. Bird
    [2006] UKPC, Privy Council Appeal No. 43 of 2004
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to title, occupation and trespass to land (Environment and Land Court Act)

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, "Mukunya Mugo A & another v Elizabeth Mugure Mukunya [2019] KEELC 59 (KLR)", Case Analysis (2019). Not stated in the judgment as provided (Murang'a ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/59/eng@2019-12-11

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