George Awuor Okullo v China Wuyi Company Limited & 2 others [2019] KEELC 194 (KLR)
The bottom line
#A Migori court ordered China Wu Yi to pay a landowner over Kshs. 13 million for excavating soil from his land without permission.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff was the registered proprietor of the suit land
Yes; the certificate of title and official searches confirmed PW1 as absolute proprietor
PW1 produced his title deed and an official search showing registration as absolute proprietor under the repealed Registered Land Act. PW2's valuation report, DW2's report, DW1's admissions in cross-examination, and the 2nd third party's own pleadings all confirmed PW1's ownership. The court noted the conclusive evidence of title provisions of the repealed Act and the Land Registration Act.
Whether the defendant trespassed and excavated soil from the suit land
Yes; the defendant entered and excavated soil without the plaintiff's consent, aided by the 1st third party
The common baseline evidence of PW1, PW2 and PW3 established excavation; DW1 and DW2 admitted extraction, DW1 relying on an agreement with the 1st third party who held himself out as caretaker. No authority from PW1 was proved. Excavation left gullies and rendered part of the land unusable, amounting to trespass.
Quantum of damages for trespass and value of excavated soil
General damages assessed at Kshs. 100,000/=; value of extracted soil proved at Kshs. 13,050,430/= at Kshs. 2,000/= per ton lorry including the valuer's professional fees
Both valuations were assumptions lacking geological support, so the court used them as guidelines only. The pleaded figure was not proved. Applying a reasonable rate and the volume evidence, the court fixed the soil value at Kshs. 13,050,430/= and awarded modest general damages of Kshs. 100,000/=, following the trend suggested by the defendant's counsel.
The defendant's third party claims against the 1st and 2nd third parties
The claim against the 1st third party succeeded as unchallenged; the claim against the 2nd third party failed
The 1st third party neither entered appearance nor filed a defence or submissions and did not testify, so the indemnity/compensation claim stood unchallenged. The 2nd third party (the Chief) only confirmed the 1st third party's caretaker status and did not authorize excavation in a manner establishing liability, so the defendant's claim against him failed with costs.
Legal principles established
#- A registered proprietor is entitled to protection of property rights under Article 40(1) of the Constitution, and trespass by removal of soil is actionable
- Removal of any part of the soil of another's land constitutes trespass
- Valuation opinion evidence not supported by geological reports or formulae is not binding on the court but may serve as a guideline
Court orders
#- 1.The defendant's claim against the 2nd third party is dismissed with costs to the 2nd third party
- 2.Judgment entered for the plaintiff against the defendant and the 1st third party jointly and severally in terms of reliefs (i), (ii) and (v) sought in the plaint dated 26th May 2015
- 3.Kshs. 100,000/= general damages for trespass awarded to the plaintiff against the defendant and 1st third party
- 4.Kshs. 13,050,430/= being value of the extracted soil from the suit land awarded to the plaintiff against the defendant and 1st third party
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land in Migori County; suit filed at Kisii ELC and transferred to Migori ELC
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Awuor Okullo v China Wuyi Company Limited & 2 others [2019] KEELC 194 (KLR)", Case Analysis (2019). ELC Case (Migori), originating as Kisii ELC Fast Track plaint dated 26th May 2015, filed 23rd July 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/194/eng@2019-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.