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ELCDismissedNot stated in the extract (plaint dated 22nd December 2011, amended 13th November 2015)· [2019] KEELC 1562 (KLR)

Kangangi Gatogoni & 9 others v Attorney General & 4 others [2019] KEELC 1562 (KLR)

Environment and Land Court
20 September 2019
ECE.C. Cherono
2,034 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Landowners lost a Ksh. 6.8 million road-encroachment claim in Kerugoya because no ground survey proved their parcels had actually shrunk.

What this practically means

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Executive summary

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The plaintiffs, registered proprietors of various parcels in Mwerua/Kithumbu, sued the 1st defendant (a town council) and four others claiming Ksh. 6,780,804 as compensation for land allegedly taken and property destroyed when the defendants extended the Tuthamba–Thiya Road by 1.5 metres on each side in January 2011. Each plaintiff particularised land acreage lost and items destroyed (trees, hedges, fences, water pipes, crops), and a valuer, Peter Gitau Ngugi (PW5), produced a valuation report quantifying the damage. The defendants denied encroachment, contending the plaintiffs had encroached on the road reserve, and offered no evidence. The court framed four issues and found that the plaintiffs failed to prove encroachment: the valuer produced no survey maps of the road before and after extension and conducted no ground survey of the individual parcels against the certificates of title, so there was no proof that the plaintiffs' acreages were reduced. Felling of trees and destruction of crops was held not to be evidence of encroachment, as the plaintiffs did not show the affected items were on their land rather than the road reserve. The claim, being special damage, also failed for want of strict proof, applying the standard in Richard Okuku Oloo v South Nyanza Sugar Co. Ltd. The suit was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the defendants encroached on the plaintiffs' parcels of land

Holding

No encroachment was proved; the plaintiffs produced no survey evidence establishing that the acreage in their titles was reduced

Reasoning

The plaintiffs' valuer did not provide survey maps of the road before and after extension and did not survey the individual parcels on the ground against the certificate of title. Without such a survey it cannot be established that the plaintiffs lost land. Destruction of trees and crops is not evidence of encroachment since the plaintiffs did not show those items were on their land rather than the road reserve.

p. 4
02

Whether the claimed damages were proved

Holding

The claim, being special damage, was not pleaded and proved to the required standard of certainty and particularity

Reasoning

Relying on Richard Okuku Oloo v South Nyanza Sugar Co. Ltd, the court applied the rule that special damages must be specifically pleaded and strictly proved with a degree of certainty depending on the circumstances. The valuation report, prepared without a ground survey and with the valuer not present during the works, could not sustain the claim.

p. 4

Legal principles established

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  • Whether land has been taken/encroached upon must be proved by a ground survey comparing the parcel on the ground with the size in the title; felling of trees and crop destruction is not proof of encroachment
  • Special damages must be specifically pleaded and strictly proved

Court orders

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  1. 1.The plaintiffs' suit is dismissed
  2. 2.Each party to bear his/her own costs

Authorities

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Cases cited (5)

  • Richard Okuku Oloo Vs South Nyanza Sugar Co. Ltd
    (2013) eKLR
  • Coast Bus Service Limited Vs Murunga & others
    Nairobi C.A No. 192 of 1992 (UR)
  • Kampala City Council Vs Nakaye
    (1972) E.A 466
  • Ouma Vs Nairobi City Council
    (1976) K.L.R 297
  • Eldama Ravine Distributors Limited and another Vs Chebon
    Civil Appeal Number 22 of 1991 (UR)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land and development damage claims

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, "Kangangi Gatogoni & 9 others v Attorney General & 4 others [2019] KEELC 1562 (KLR)", Case Analysis (2019). Not stated in the extract (plaint dated 22nd December 2011, amended 13th November 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1562/eng@2019-09-20

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