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ELCPartially AllowedELC Suit No. 452 of 2017· [2019] KEELC 1966 (KLR)

Justus Munyao Kyungu v Robin Stuart Mcdonald & another [2019] KEELC 1966 (KLR)

Environment and Land Court
31 July 2019
MGMbogo C. G.
1,640 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner won Kshs.1.5 million in damages after the Environment and Land Court confirmed an allotment letter and rate receipts prove ownership against trespassers.

What this practically means

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Executive summary

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The plaintiff, Justus Munyao Kyungu, sued the two defendants for trespass onto plot No. 367 (80 by 100 feet) at Mtito Andei Town Council, which he claimed to have owned since 1989 and developed with a three-unit commercial building. He sought a permanent injunction, a mandatory injunction for restitution of the status quo, and general and exemplary damages, alleging that in February 2008 the second defendant, as agent of the first, wrongfully entered the plot, broke the locks and evicted his tenants. The defendants denied the claim and contended that the plaintiff was conspiring to deprive the first defendant of plot No. 134, relying on an arbitral award in Machakos HCCC No. 121 of 1998, entered as judgment in 2007, which found the plot belonged to the first defendant. The defendants did not attend the hearing, which proceeded in their absence after proof of service on their counsel. The plaintiff testified and called B. Keneth Ngeny, Director of Lands and Urban Planning at Makueni County Government, who confirmed the plot was registered in the plaintiff's name in council records inherited upon devolution, with no transfer or subdivision. The court found no evidence that the defendants owned plot No. 134 or that it was identical to plot No. 367, held the plot belonged to the plaintiff, and found the defendants had trespassed and occupied it since February 2008, denying him use and profits. Judgment was entered for the plaintiff jointly and severally against the defendants, with general and exemplary damages of Kshs.1,500,000/= and injunctions. Notably, the recorded disposition omits the text of the injunctive orders and any express costs order.

Key legal issues

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01

Ownership of plot No. 367 Mtito Andei

Holding

The court held that the plot belongs to the Plaintiff, who was allocated it by the Government of Kenya and has paid all the necessary rates and rent.

Reasoning

The Plaintiff produced an allotment letter from the Department of Lands dated 16 June 1999, miscellaneous receipts from Makueni County Government, a valuation report and an extract of register. The Director of Lands and Urban Planning of Makueni County Government (PW1) confirmed the plot is registered in the Plaintiff's name in the records inherited from the defunct Mtito Andei Town Council, with no change of ownership. No evidence linked the Defendants' alleged plot No. 134 to plot No. 367.

p. 2
02

Trespass by the Defendants and entitlement to damages

Holding

The Defendants trespassed into the Plaintiff's plot and, given over ten years of continued occupation since February 2008 denying the Plaintiff use and profits, an award of Kshs.1,500,000/= in general and exemplary damages was appropriate.

Reasoning

The Defendants did not attend the hearing; their defence, which relied on an arbitral award in Machakos HCCC No. 121 of 1998, was unsupported by evidence. Relying on Halsbury's principles on damages for trespass as cited by the Plaintiff's counsel, the court found that continued occupation deprived the Plaintiff of use and profits accruing from the plot, justifying substantial general and exemplary damages.

p. 2
03

Injunctive relief

Holding

The court was satisfied that the Defendants ought to be compelled by mandatory injunction to restitute the suit property and restrained by an order of injunction.

Reasoning

Having found the Plaintiff owner of the plot on a balance of probabilities and the Defendants' entry and continued occupation unlawful, the court agreed there was need for a mandatory injunction to restore the Plaintiff to the property and a permanent injunction to restrain further interference.

p. 2

Legal principles established

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  • Proof of ownership of land, evidenced by an allotment letter and payment of rates, establishes a claim in trespass against one who enters without justifiable cause.

Court orders

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  1. 1.Judgment entered for the Plaintiff and against the Defendants jointly and severally
  2. 2.Kshs.1,500,000/= general and exemplary damages
  3. 3.Mandatory injunction to restitute the suit property to the Plaintiff (referred to in the judgment though the disposition text for items (a) and (b) is incomplete)
  4. 4.Permanent injunction restraining the Defendants from interfering with the Plaintiff's quiet possession (referred to in the judgment though the disposition text is incomplete)

Authorities

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Cases cited (1)

  • Ochako Obinchu v Zachary Oyoti Nyamongo
    [2018] eKLR

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, "Justus Munyao Kyungu v Robin Stuart Mcdonald & another [2019] KEELC 1966 (KLR)", Case Analysis (2019). ELC Suit No. 452 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1966/eng@2019-07-31

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