Raphael Kariuki Wamae & another v Nancy Wanyoike & 3 others [2019] KEELC 3311 (KLR)
The bottom line
#A landowner in Thika won a trespass case against neighbours who built a wall, but lost the claim for general damages because they never proved it.
What this practically means
#Executive summary
#Key legal issues
#Proof of proprietorship and trespass in an undefended suit
The plaintiffs proved registered proprietorship through a certificate of lease and official search, and the uncontroverted evidence of trespass entitled them to judgment on a balance of probabilities
PW1 adopted his written statement and produced 21 documents, including the certificate of lease and official search showing the plaintiffs as registered proprietors, receipts for rates, and photographs of the wall erected by the defendants. With no defence filed despite service by newspaper notice, the evidence stood uncontroverted and the court was satisfied the claim was proved on a balance of probabilities.
Entitlement to special damages
Special damages were proved by receipts for Kshs. 72,500 (excavator and low-loader hire) and Kshs. 150,000 (fencing labour costs), and were awarded
The plaintiffs produced a receipt dated 13/11/2012 for Kshs. 72,500 issued by M/s Welltech & Supplies for hire of an excavator and low-loader, and a receipt dated 12/11/2012 for Kshs. 150,000 issued by M/s Tepot Builders & Construction for labour costs. As special damages must be specifically pleaded and strictly proved, the receipts satisfied the proof requirement in the absence of any controverting evidence.
Claim for general damages
General damages were refused because no basis was laid for them in evidence or submissions
Although general damages was prayer 3 of the further amended plaint, the plaintiffs laid no evidential foundation for it, whether through PW1's testimony or written submissions. The court accordingly declined to award that limb of the claim while granting the other prayers.
Legal principles established
#- Where pleadings and evidence are uncontroverted and no defence or controverting evidence is adduced, the plaintiff need only prove its case on a balance of probabilities
- A certificate of lease together with an official search is proof of registered proprietorship of land
Court orders
#- 1.Judgment entered in favour of the plaintiffs in terms of prayers 1, 2, 3 and 5 of the further amended plaint
- 2.Special damages awarded: Kshs. 72,500 for hire of excavator and low-loader and Kshs. 150,000 for fencing deposit/labour costs
- 3.Permanent injunction restraining the defendants and/or their servants or agents from trespassing on, encroaching on or dispossessing the plaintiffs of their land
- 4.Interest on the special damages and costs at court rates
- 5.Costs of the suit to the plaintiffs, to include monies paid to newspaper proprietors for publication of the notice of summons
- 6.Claim for general damages declined
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a claim of trespass to land (founded on registered proprietorship of land)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Raphael Kariuki Wamae & another v Nancy Wanyoike & 3 others [2019] KEELC 3311 (KLR)", Case Analysis (2019). Not stated in judgment (further amended plaint dated 16/10/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3311/eng@2019-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.