Mukunya Mugo A & another v Elizabeth Mugure Mukunya [2019] KEELC 59 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Plaintiffs are registered joint trustees of the suit land
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
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.
Whether the Defendant is a trespasser
The court found the Defendant in continuous trespass, her continued occupation having no justiciable justification
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.
Whether the Plaintiffs were entitled to mesne profits
The claim for mesne profits was declined for failure to plead and prove the amounts
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.
Legal principles established
#- 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
#- 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.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.In default, eviction to ensue
- 4.The OCS Kirwara Police Station to supervise the eviction to ensure maintenance of law and order
- 5.A permanent injunction restraining the Defendant from entering, cultivating, occupying or interfering with LOC.1/KIUNYU/172
- 6.No orders as to costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction over disputes relating to title, occupation and trespass to land (Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.