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ELCPartially AllowedNot stated in the judgment (plaint dated 14/9/2016)· [2019] KEELC 746 (KLR)

Mary Nduta Ngugi v Beatrice Ngelesai & another [2019] KEELC 746 (KLR)

Environment and Land Court
13 November 2019
MNMwangi Njoroge
2,402 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kitale ruled that building even partly on your neighbour's land is trespass that can cost you eviction, demolition, and damages.

What this practically means

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Executive summary

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The plaintiff, registered lessee of Kitale Municipality Block 3/1002 (0.1286 ha), sued the defendants for trespass after they allegedly uprooted beacons re-established by the County Surveyor and erected iron sheet structures encroaching 0.0628 ha onto her land in 2016. She sought declarations of ownership and trespass, vacation/eviction, general and exemplary damages, costs and interest. The first ex parte judgment was set aside on 8/4/2019 and the matter heard afresh. PW1 gave evidence consistent with her pleadings; PW2, a government surveyor, testified he re-established beacons in the defendants' presence on 14/7/2016 and found two uprooted and a structure in progress on 15/8/2016; PW3, a private surveyor, confirmed the encroachment. DW1 denied knowing the plaintiff or the plot, claiming the adjacent land was allotted to her son, Anthony Kiprotich. The court held the defendants bound by their own pleadings, found DW1's evidence not credible, and on the unshaken expert evidence found the 1st defendant liable for trespass; the 2nd defendant filed no evidence. Applying the cited authorities on exemplary damages, the court found the trespass wrongful and aimed at unlawful gain, but awarded only nominal general damages of Kshs 50,000 for want of evidence on quantum and exemplary damages of Kshs 100,000. Judgment was entered jointly and severally with declarations of ownership and trespass, an order to vacate failing which eviction and demolition would follow, costs to the defendants, and interest on the damages from judgment. Judgment delivered at Kitale on 13 November 2019 by Mwangi Njoroge, J.

Key legal issues

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01

Whether the defendants trespassed on the plaintiff's land

Holding

Trespass proved on a balance of probabilities against the 1st defendant; suit against the 2nd defendant proceeded undefended with no evidence

Reasoning

The court relied on uncontroverted expert evidence of two surveyors that structures encroached 0.0628 ha onto the plaintiff's land, and on the defendants' own pleadings which admitted names and descriptions and alleged occupation of the adjacent plot by DW1's son. DW1's testimony denying knowledge of the plot was held to be incredible and a departure from the defence.

p. 3
02

Whether exemplary damages were payable

Holding

Exemplary damages awarded because the defendants wilfully occupied the land to gain unlawful advantage

Reasoning

Applying the cited authority on the categories for exemplary damages in tort, the court found the trespass wrongful, unjustified and aimed at gaining an unlawful advantage by use of part of the plaintiff's land. General damages were assessed nominally at Kshs 50,000 due to absence of evidence on quantum; exemplary damages were assessed at Kshs 100,000.

p. 3

Legal principles established

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  • A party is bound by its own pleadings and cannot turn from them at the hearing.
  • Exemplary damages may be awarded in tort where the defendant's conduct is calculated to earn profit.

Court orders

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  1. 1.Declaration that land comprised in Title No. Kitale Municipality Block 3/1002 measuring 0.1286 hectares belongs to the plaintiff and the defendants have no interest therein
  2. 2.Declaration that the defendants are trespassers on part of the plaintiff's land and order to vacate, failing which they be evicted and their structures within the boundaries of the title be demolished
  3. 3.General damages for trespass of Kshs 50,000/- payable by the defendants
  4. 4.Exemplary damages for trespass of Kshs 100,000/- payable by the defendants
  5. 5.Defendants to bear the costs of the suit
  6. 6.Amounts in damages to bear interest from date of judgment at court rates till settled in full
Jurisdiction invoked
Original civil jurisdiction over the suit (trespass to land), Art 162(2)(b) ELC jurisdiction implied; not expressly cited

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, "Mary Nduta Ngugi v Beatrice Ngelesai & another [2019] KEELC 746 (KLR)", Case Analysis (2019). Not stated in the judgment (plaint dated 14/9/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/746/eng@2019-11-13

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