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ELCPartially AllowedMalindi ELC Case (Plaint dated 12th August 2013)· [2019] KEELC 1004 (KLR)

Cecilia Kadzo Emmanuel (Suing as the Administrator of the Estate of Jonathan M. Karisa (Deceased) v Miriam Chea Mungai [2019] KEELC 1004 (KLR)

Environment and Land Court
24 October 2019
JOJ. O. Olola
2,964 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court relied on expert survey evidence to settle a land ownership dispute, dismissed the claimant's case, and ordered her to remove structures encroaching on her neighbour's titled plot.

What this practically means

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Executive summary

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The Plaintiff, suing on her own behalf and as administratrix of the estate of her late husband Jonathan M. Karisa, claimed Plot No. 490 Mabirikani allocated under the Kalolo Kibaoni Bayamagonzi (KKB) Upgrading Project, and sought declarations, a permanent injunction, removal of the Defendant's developments, compensation of Kshs 25,425 for felled trees, and exemplary damages for mental torture. The Defendant denied the claim and counterclaimed, asserting she was the registered proprietor of LR No. 5054/328 Kilifi Township (formerly unsurveyed Plot No. 16), allocated in 1987 and titled in 2012, and accused the Plaintiff of encroachment, seeking a declaration, injunction, removal of structures and general damages for loss of user. Both parties recorded a consent on 8th March 2017 directing the Physical Planner and County Surveyor to locate both parcels and report. The District Surveyor, Kilifi (DW3) found the two plots are different and adjacent, that the owner of Plot No. 490 has encroached on LR No. 5054/328, with part of the Plaintiff's house and her entire cowshed on the Defendant's land. The former KKB Chair (DW2) confirmed from scheme records that Plot No. 490 belongs to the Plaintiff's husband and lies within the KKB area, distinct from the Defendant's Government-allocated plot. The court found no reason to doubt the expert evidence, dismissed the Plaintiff's suit, allowed the Counterclaim, gave the Plaintiff 45 days to remove her structures failing which removal at her cost, declined general damages for lack of proof of loss of user, and awarded the Defendant costs of both the suit and Counterclaim. Judgment delivered at Malindi on 24th October 2019 by J.O. Olola, Judge.

Key legal issues

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01

Identity and location of the two disputed parcels

Holding

Plot No. 490 and LR No. 5054/328 are different, adjacent plots; the Plaintiff's structures partly encroach on the Defendant's parcel

Reasoning

The court relied on the District Surveyor's Report and Sketch Plan prepared pursuant to a consent order, together with the testimony of DW2, the former KKB Chair, who confirmed from scheme records that Plot No. 490 lies in the KKB area while the Defendant's plot lies in Mabirikani and is not part of the KKB Scheme. The expert evidence was unshaken on cross-examination and the court found no reason to doubt it.

p. 4
02

Defendant's title to LR No. 5054/328

Holding

The Defendant proved she is the rightful proprietor of LR No. 5054/328 Kilifi Township, formerly unsurveyed Plot No. 16

Reasoning

The Defendant produced a Certificate of Grant issued by the Commissioner of Lands and a Title Deed issued on 25th September 2012 after survey, showing the parcel was previously unsurveyed Plot No. 16 Kilifi Township. The surveyor's report confirmed the plot was planned and surveyed under approved Survey Plan FR No. 254/3 and is distinct from the KKB Scheme plots.

p. 4
03

Defendant's claim for general damages for loss of user

Holding

Claim refused for lack of proof

Reasoning

Although the Counterclaim succeeded on liability, the Defendant led no evidence quantifying or establishing loss of user, income or profit opportunities since 2012. Damages are never awarded at large; a claimant must prove the loss claimed, and the court accordingly declined to make any award under this head.

p. 4

Legal principles established

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  • Where expert survey evidence establishes the location of parcels on the ground, the court will act on it in determining competing ownership claims
  • A party alleging encroachment and loss must adduce proof of loss to found an award of general damages

Court orders

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  1. 1.Plaintiff's case dismissed
  2. 2.Defendant's Counterclaim allowed; declaration that LR No. 5054/328 Kilifi Township belongs to the Defendant
  3. 3.Plaintiff given 45 days to remove her structures from LR No. 5054/328, failing which removal at her cost as sought in Prayer (c) of the Counterclaim
  4. 4.Defendant awarded costs of both the Plaintiff's suit and the Counterclaim
  5. 5.No award of general damages for loss of user

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 13, 17, 37 and 38
  • Land ActSection 7
  • Land Registration ActSection 101
  • Constitution of Kenyanot specified
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Plaint and Counterclaim filed in the Court)

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, "Cecilia Kadzo Emmanuel (Suing as the Administrator of the Estate of Jonathan M. Karisa (Deceased) v Miriam Chea Mungai [2019] KEELC 1004 (KLR)", Case Analysis (2019). Malindi ELC Case (Plaint dated 12th August 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1004/eng@2019-10-24

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