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ELCAllowedNairobi ELC Case (as pleaded; judgment does not print a case number)· [2019] KEELC 1595 (KLR)

Charles Muriithi Wanjau & 2 others v Elizabeth Gacheri Njuguna & 4 others [2019] KEELC 1595 (KLR)

Environment and Land Court
1 October 2019
BEB M Eboso
3,312 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Nairobi court ruled that registered land owners evicted trespassers, awarding Kshs 1,000,000 in damages and ordering the family to vacate within 90 days.

What this practically means

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Executive summary

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The plaintiffs, registered proprietors of Land Parcel Dagoretti/Mutuini/709 purchased from Monica Waithira Hosea in 2011 for Kshs 3,000,000, sued the defendants - the widow and sons of the late Njuguna Kirika - for trespass, declarations of entitlement, injunction, vacant possession, general damages and costs. The defendants denied the plaintiffs' ownership, claiming to occupy Parcel 410 which belonged to the late Njuguna Kirika, and raised res judicata (relying on Nairobi RMCC No 5 of 1984 and ELC 573 of 2010), limitation, non-service of summons, and alleged non-execution of the 1984 subdivision order. Framing five issues, the court found that the parcel register for Parcel 410 was closed following the court order in RMCC 5 of 1984, which was implemented by a registered mutation subdividing the land into Parcels 709, 713 and 714. The plaintiffs proved ownership of Parcel 709 through title documents and the absence of controverting evidence, and the defendants were held to be trespassers. The limitation defence failed as unpleaded and factually baseless, the claim accrued after 2011. Res judicata failed because the plaintiffs were not parties to the 1984 suit and that order was duly executed. The non-service objection was rejected as belated. Holding that the plaintiffs' title is protected by Article 40 of the Constitution and Section 25 of the Land Registration Act, the court entered judgment for the plaintiffs with declarations, injunction, possession, general damages of Kshs 1,000,000, joint and several costs against the defendants, and 90 days to vacate failing eviction.

Key legal issues

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01

Whether Parcel 410 still exists or was lawfully subdivided

Holding

The parcel register for Parcel 410 was closed and the parcel was lawfully subdivided into 709, 713 and 714 pursuant to the court order in Nairobi RMCC No 5 of 1984, as evidenced by the registered mutation form.

Reasoning

The court order in RMCC 5 of 1984 directed partitioning of Parcel 410 into three portions. PW1 produced a registered Mutation Form showing implementation of the order and a Title Deed showing the register for Parcel 709 was opened on 3/4/1986. The defendants produced no title, register or official search to controvert this evidence.

p. 3
02

Whether the plaintiffs own Parcel 709

Holding

The plaintiffs proved existence of Parcel 709 and their ownership by purchase and registration, in the absence of controverting evidence.

Reasoning

The plaintiffs produced the title deed to Monica Waithira Hosea, a sale agreement dated 2/8/2011 for Kshs 3,000,000, land control board consent dated 9/11/2011 and a title deed issued to the plaintiffs on 7/8/2012. There was no controverting evidence from the defendants.

p. 3
03

Whether the defendants are trespassers

Holding

The defendants, having encroached on land registered in the plaintiffs' names without any tenable basis, are trespassers.

Reasoning

The defendants admitted encroachment but contended the land is still Parcel 410. Having found the parcel was lawfully subdivided and mutated into three portions registered in the names of lawful proprietors, the court found no tenable basis for the defendants' insistence and held them to be trespassers.

p. 3
04

Whether the claim is statute-barred

Holding

The claim is not statute-barred; limitation was not pleaded and the cause of action accrued on purchase in 2011, less than three years before filing.

Reasoning

The limitation defence was not pleaded in the statement of defence. The plaintiffs purchased in August 2011, were registered in August 2012, and filed suit in May 2014 - less than three years from purchase and less than two years from registration.

p. 3
05

Whether the suit is res judicata / enforcement of RMCC 5 of 1984

Holding

Res judicata does not apply; the plaintiffs were not parties to RMCC 5 of 1984 and the order therein was duly executed, so no cause of action existed before 2011.

Reasoning

The order in RMCC 5 of 1984 was implemented through actual subdivision culminating in opening of parcel registers. The plaintiffs acquired Parcel 709 in 2011 and their cause of action accrued thereafter. Nor is the suit an enforcement of that order, since Monica Waithira had obtained a separate order in HCCC 573 of 2010.

p. 3
06

Whether failure to serve summons vitiates the suit

Holding

The objection, raised belatedly in submissions after the defendants had filed defence and led evidence, was rejected.

Reasoning

The issue of non-service was raised for the first time in submissions, after the defendants had entered appearance, filed a joint defence, led evidence and made submissions. The court found no useful purpose would be served by the objection and the plaintiffs had no opportunity to respond.

p. 4

Legal principles established

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  • A registered proprietor's title is protected under the Constitution and the Land Registration Act
  • A limitation defence must be pleaded in the statement of defence
  • A claim of res judicata fails where the party was not party to the earlier suit and the earlier order was duly executed

Court orders

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  1. 1.Declaration that the plaintiffs are entitled to exclusive and unimpeded right of possession and occupation of Land Title Number Dagoretti/Mutuini/709
  2. 2.Declaration that the defendants are wrongfully in occupation of the suit property and are accordingly trespassers
  3. 3.Declaration that the defendants together with their servants or agents are not entitled to remain on the suit property
  4. 4.Injunction restraining the defendants, their agents or servants from remaining on or continuing in occupation of the suit property
  5. 5.Plaintiffs granted possession of the suit property
  6. 6.General damages of Kshs 1,000,000 awarded against the defendants severally and jointly
  7. 7.Defendants to bear costs of the suit jointly and severally
  8. 8.Ninety (90) days to remove structures and vacate; in default, eviction to ensue with security provided by the Officer Commanding the local Police Division

Authorities

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Legislation

  • Land Registration ActSections 25(1), 25, 206
  • Limitation of Actions ActSection 4(4)
  • Civil Procedure RulesOrder 5 Rule 1(3) and (6)
  • Constitution of Kenya, 2010Article 40

Cases cited (3)

  • KGGCU Limited v Augustine Cheruiyot
    (2006) eKLR
  • Fredrick Kiura Njaga Waweru & 2 others v Justino Njue M'Mbuchi & 24 others
    (2013) eKLR
  • Halima Kasi Tonui & 33 others v Board of Trustees Teleposta Pension Scheme Lloyd Masika Limited
    Mombasa HCCC No 111 of 2012
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim of trespass and land ownership

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, "Charles Muriithi Wanjau & 2 others v Elizabeth Gacheri Njuguna & 4 others [2019] KEELC 1595 (KLR)", Case Analysis (2019). Nairobi ELC Case (as pleaded; judgment does not print a case number). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1595/eng@2019-10-01

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