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ELCPartially AllowedELC Case No. 689 of 2012· [2019] KEELC 2805 (KLR)

Teresiah Nyambura Karera v Pauline Nyaguthie Mutahi [2019] KEELC 2805 (KLR)

Environment and Land Court
21 May 2019
KBK. Bor
740 words in judgment
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The bottom line

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A Nairobi court ruled that building a permanent house on someone else's plot is trespass, awarding the landowner Kshs. 500,000 and ordering the builder to stay off the property.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant over L.R. number 27627/54 in Utawala, Nairobi, alleging that in September 2010 the Defendant trespassed onto the plot, fenced it, and from 2012 began construction. She sought a declaration of ownership, a permanent injunction, general damages for trespass and waste, interest and costs. The Defendant's defence, filed on 14/6/2013, denied trespass and asserted she was building on her own plot number 27627/96; she did not participate at the trial. The Plaintiff testified and called two witnesses: the chairman of Kandara Development Company Limited, who produced the members' register confirming the Suit Property was initially allocated to the Plaintiff's father and that plot 27627/96 is registered in the Defendant's name, and the surveyor who subdivided the land, who produced the beacon certificate and survey map F/R no. 339/78 showing the two plots are located far apart. Both confirmed the Defendant constructed a permanent house on the Plaintiff's plot while her own plot lies vacant. The court found the claim proved on a balance of probabilities and granted prayers (a) and (b) of the plaint - the declaration of ownership and the permanent injunction. For the established trespass, the court awarded general damages of Kshs. 500,000/= against the Defendant, with costs of the suit to the Plaintiff. Judgment was delivered at Nairobi on 21st May 2019 by K. Bor, J.

Key legal issues

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01

Whether the Defendant trespassed on the Plaintiff's plot

Holding

The court found that the Defendant had constructed a permanent house on plot number 27627/54 belonging to the Plaintiff while leaving her own plot 27627/96 vacant, and thus proved trespass.

Reasoning

The Plaintiff testified that she is the registered owner of the Suit Property, allocated initially to her father and transferred to her in 2006, and produced a beacon certificate and the register of members of Kandara Development Company Limited. The company chairman confirmed the allocations, and the surveyor who subdivided the land produced the survey map showing the two plots are in different locations. Both witnesses confirmed the Defendant built on the Plaintiff's plot while her own plot lay vacant. The court therefore found the claim proved on a balance of probabilities.

p. 2

Legal principles established

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  • A plaintiff who proves registered ownership of land and unauthorised construction thereon by another establishes trespass on a balance of probabilities and is entitled to a declaration, injunction and general damages.

Court orders

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  1. 1.Declaration that the Suit Property, L.R. number 27627/54, belongs to the Plaintiff (prayer (a) granted)
  2. 2.Permanent injunction restraining the Defendant from entering, excavating, building or in any manner interfering with the Suit Property (prayer (b) granted)
  3. 3.General damages of Kshs. 500,000/= against the Defendant for trespass
  4. 4.Costs of the suit to the Plaintiff
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (Environment and Land Court Act)

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, "Teresiah Nyambura Karera v Pauline Nyaguthie Mutahi [2019] KEELC 2805 (KLR)", Case Analysis (2019). ELC Case No. 689 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2805/eng@2019-05-21

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