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ELCDismissedELC No. 475 of 2013· [2019] KEELC 2848 (KLR)

Lucy Nyambura Gitonga v Celtel Kenya Limited & another [2019] KEELC 2848 (KLR)

Environment and Land Court
7 May 2019
KBK. Bor
2,055 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 lost her trespass case against Celtel Kenya because she couldn't prove which property she actually owned or where the advertisement was painted.

What this practically means

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Executive summary

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The plaintiff, claiming to be the registered owner of L.R No. Kahawa/Mwana-Mukia/491, sued Celtel Kenya Limited (1st defendant) and Diverse Suppliers Limited (2nd defendant) seeking a mandatory injunction compelling removal of advertisements painted on the perimeter wall of her property, restoration of the wall, general damages for trespass, costs and interest. She alleged that in March the defendants, without her consent, painted commercial branding on the wall, and that they continued to profit from it. The 2nd defendant did not enter appearance. The 1st defendant denied trespass, denied the plaintiff's ownership, contended she was not in possession (her tenants being the persons in occupation), asserted that it had outsourced branding to agents and that trespass is not a delegated tort, and argued the plaintiff had prevented removal of the inscriptions. The plaintiff tendered a title in respect of Ruiru/Kiu Block 1/491 although the plaint described the property as Kahawa/Mwana-Mukia/491. She relied on English authorities on the measure of damages for trespass and a Court of Appeal decision on title versus possession. The court found she had led no evidence connecting the two apparently distinct parcels, nor showing on which parcel the advertisement was placed, and that photographs could not resolve the question. Holding that she had failed to prove her case on a balance of probabilities, the court dismissed the suit and ordered each party to bear its own costs.

Key legal issues

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01

Ownership and identification of the suit property

Holding

The Plaintiff pleaded Kahawa/Mwana-Mukia/491 but tendered a title over Ruiru/Kiu Block 1/491 and led no evidence linking the two parcels or showing on which the advertisement was placed

Reasoning

The plaint described the suit property as L.R Kahawa/Mwana-Mukia/491, yet the title produced was in respect of Ruiru/Kiu Block 1/491, parcels which on their face appear distinct. No evidence connected the two parcels or identified on which one the advertisement was painted, and photographs alone could not resolve the discrepancy. Without this proof, the claim in trespass could not stand.

p. 2
02

Standard of proof in a trespass claim

Holding

The plaintiff failed to discharge the burden of proving her case on a balance of probabilities

Reasoning

Having considered the pleadings, evidence and submissions, the court found the plaintiff had not established her case to the required civil standard. The discrepancy in parcel descriptions and absence of evidence linking the title produced to the property described in the plaint were fatal to the claim for a mandatory injunction and general damages.

p. 3

Legal principles established

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  • A plaintiff must prove her case on a balance of probabilities, including title to the specific property sued over and the locus of the trespass

Court orders

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  1. 1.Suit dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Land Registration ActSections 24 and 25

Cases cited (3)

  • Swordheath Properties Ltd v Tabet & others
    [1979] 1 All ER 240
  • Drane v Evangelou & Others
    [1978] 2 All ER 437
  • Charles Ogego Ochieng v Geoffrey Okumu
    Civil Appeal No. 181 of 1995
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (part heard in 2012 by Lady Justice Khaminwa before being heard by this Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lucy Nyambura Gitonga v Celtel Kenya Limited & another [2019] KEELC 2848 (KLR)", Case Analysis (2019). ELC No. 475 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2848/eng@2019-05-07

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