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ELCPartially AllowedELC Case (Migori), originating as Kisii ELC Fast Track plaint dated 26th May 2015, filed 23rd July 2015· [2019] KEELC 194 (KLR)

George Awuor Okullo v China Wuyi Company Limited & 2 others [2019] KEELC 194 (KLR)

Environment and Land Court
4 December 2019
3,618 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff, registered proprietor of Suna West/Wasweta II/844 (approximately 10.15 hectares) in Migori County, sued China Wu Yi Company Limited for trespass, alleging that between 2013 and 2014 the defendant excavated and harvested murram from his land for road construction works, defacing it and leaving gullies. He sought a permanent injunction, restoration of the land, general damages for trespass, and Kshs. 22,924,895/= being the value of excavated murram. The defendant admitted excavation but claimed it was done at the behest of the 1st third party (the plaintiff's caretaker and brother-in-law) with confirmation by the 2nd third party (the area Chief), joining them as third parties for indemnity. The 1st third party never entered appearance or defended the claim; the 2nd third party denied liability. The court found the plaintiff to be the absolute registered proprietor on the strength of his title, official searches, and admissions by the defendant's witnesses. It held that the defendant trespassed, the soil excavation being unauthorised, and that removal of soil constitutes trespass. Both competing valuation reports were found to be mere assumptions unsupported by geological reports; using them as guidelines, the court proved the value of extracted soil at Kshs. 13,050,430/= at Kshs. 2,000/= per ton lorry and awarded Kshs. 100,000/= general damages. The defendant's claim against the 1st third party succeeded unchallenged, but its claim against the 2nd third party was dismissed with costs. Judgment was entered for the plaintiff against the defendant and 1st third party jointly and severally for reliefs (i), (ii) and (v) of the plaint, Kshs. 100,000/= general damages and Kshs. 13,050,430/=.

Key legal issues

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01

Whether the plaintiff was the registered proprietor of the suit land

Holding

Yes; the certificate of title and official searches confirmed PW1 as absolute proprietor

Reasoning

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.

p. 3
02

Whether the defendant trespassed and excavated soil from the suit land

Holding

Yes; the defendant entered and excavated soil without the plaintiff's consent, aided by the 1st third party

Reasoning

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.

p. 4
03

Quantum of damages for trespass and value of excavated soil

Holding

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

Reasoning

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.

p. 5
04

The defendant's third party claims against the 1st and 2nd third parties

Holding

The claim against the 1st third party succeeded as unchallenged; the claim against the 2nd third party failed

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The defendant's claim against the 2nd third party is dismissed with costs to the 2nd third party
  2. 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. 3.Kshs. 100,000/= general damages for trespass awarded to the plaintiff against the defendant and 1st third party
  4. 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

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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, "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.