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ELCAllowedELC Case No. 129 of 2017 (Formerly Machakos ELC No. 377 of 2011)· [2019] KEELC 3241 (KLR)

Kitts Investment Limited v David Kimiti & 8 others [2019] KEELC 3241 (KLR)

Environment and Land Court of Kenya
16 May 2019
COChristine Ochieng
2,276 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed a registered title beats any letter of allotment, awarded Kshs. 1 million for trespass, and evicted the occupants.

What this practically means

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Executive summary

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The Plaintiff, Kitts Investment Limited, sued nine Defendants seeking a declaration of exclusive entitlement to L.R. No. 19163 NoonKopir Township (formerly Industrial Plot No. 115), a permanent injunction against trespass, and general damages for trespass. The Plaintiff's case, testified to by PW1 Austin Salmon Kitololo, was that it purchased the suit land from SAMCON Enterprises Limited, the original allottee, with a transfer effected on 9th August 1994, and holds a Certificate of Title. The 1st Defendant claimed he was lawfully allotted the land by the 9th Defendant (County Council of Ol-Kejuado), subdivided it and sold portions to the 2nd to 8th Defendants, who claimed letters of allotment. The 9th Defendant denied issuing any allotment over the land except to SAMCON Enterprises Limited. The matter proceeded exparte as the Defendants, though served, did not attend; only the Plaintiff's evidence was heard. The court framed four issues: registration of the Plaintiff as proprietor, trespass and permanent restraint, entitlement to damages, and costs. Relying on Section 26(1) of the Land Registration Act, Section 23(1) of the repealed Registration of Titles Act, and authorities including Dr. Joseph Arap Ngok v Justice Moijo ole Keiwua and Stephen Mburu v Comat Merchants, the court held the Plaintiff's Certificate of Title was prima facie evidence of absolute and indefeasible ownership which the letters of allotment could not supersede, and no Defendant proved fraud. Trespass by the 2nd to 8th Defendants was found established and actionable per se; despite the Plaintiff adducing no evidence of quantifiable loss, the court awarded Kshs. 1,000,000 general damages, citing Duncan Nderitu Ndegwa v KP&LC. Judgment was entered for the Plaintiff with a declaration of ownership, a permanent injunction, damages of Kshs. 1,000,000, and costs of the suit awarded to the Plaintiff.

Key legal issues

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01

Whether the Plaintiff is the registered proprietor of the suit land

Holding

The Plaintiff is the registered owner; the 2nd to 8th Defendants' alleged Letters of Allotment cannot supersede its Certificate of Title, and no Defendant proved fraud against the Plaintiff's title.

Reasoning

PW1 produced a Certificate of Title and transfer documents showing the land was originally allotted to SAMCON Enterprises Limited and transferred to the Plaintiff on 9th August 1994, a fact corroborated by the 9th Defendant's Defence and a letter from the Chief Land Registrar. The Defendants, though served, did not attend court or controvert this evidence. Relying on Section 26(1) of the Land Registration Act and Section 23(1) of the repealed Registration of Titles Act, the court found the title absolute and indefeasible, no defendant having demonstrated fraudulent acquisition.

p. 3
02

Whether the Defendants trespassed and should be permanently restrained

Holding

The 2nd to 8th Defendants trespassed on the Plaintiff's land, and the Defendants are permanently restrained from interfering with the Plaintiff's possession and occupation.

Reasoning

PW1 testified uncontrovertedly that the 2nd to 8th Defendants erected structures on the suit land without the Plaintiff's consent, despite a court order of 14th December 2012. Having found the Plaintiff the registered proprietor, the court held the Defendants' presence thereon is an illegality and their occupation constitutes trespass warranting a permanent injunction.

p. 3
03

Whether the Plaintiff is entitled to general damages for trespass

Holding

General damages of Kshs. 1,000,000 awarded, trespass being actionable per se though the Plaintiff led no specific evidence of loss.

Reasoning

Although the Plaintiff failed to adduce evidence quantifying the loss suffered from the Defendants' trespass, the court was persuaded by the authority in Duncan Nderitu Ndegwa v KP&LC Limited that trespass is actionable per se and proof of damage is unnecessary. Considering that the Plaintiff had been denied use of the land since its transfer in 1994, the court awarded Kshs. 1,000,000 as general damages.

p. 3

Legal principles established

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  • A certificate of title issued upon registration is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme
  • A letter of allotment is not a title to property and cannot supersede a registered certificate of title
  • Trespass to land is actionable per se and no proof of damage is necessary for the court to award general damages

Court orders

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  1. 1.Judgment entered for the plaintiff against the defendants in the sum of Kshs. 1,000,000/= as general damages for trespass
  2. 2.A declaration issued that as against the defendants, the plaintiff is the absolute proprietor of land parcel L.R. No. 19163 NoonKopir Township (formerly industrial plot no. 115)
  3. 3.The Defendants, their employees, servants and/or agents permanently restrained from trespassing on, continuing in occupation, purporting to sell, erecting structures or otherwise interfering with the Plaintiff's quiet possession of the suit land
  4. 4.The costs of the suit awarded to the Plaintiff

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Land Registration ActSection 25(1)
  • Registration of Titles Act (repealed)Section 23(1)
  • Registration of Titles Act (repealed)Sections 20 and 22(2)

Cases cited (6)

  • Alice Chemutai Too vs. Nickson Kipkirui Korir & 2 Others
    [2015] eKLR
  • Park Towers Ltd. vs. John Mithamo Njika & 7 Others
    [2014] eKLR
  • Duncan Nderitu Ndegwa vs. KP&LC Ltd & Another
    [2013] eKLR
  • Arthi Highway Developers Limited - Vs - West End Butchery Limited and Others
    Civil Appeal No. 246 of 2013
  • Dr. Joseph Arap Ngok - Vs - Justice Moijo ole Keiwua & 5 others
    Civil Appeal No. Nai. 60 of 1997
  • Stephen Mburu & 4 Others vs Comat Merchants Ltd & Anor
    [2012] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (originally filed before the court; parties conceded the court's jurisdiction)

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, "Kitts Investment Limited v David Kimiti & 8 others [2019] KEELC 3241 (KLR)", Case Analysis (2019). ELC Case No. 129 of 2017 (Formerly Machakos ELC No. 377 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3241/eng@2019-05-16

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